




PARKER                                                              



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-281-CV



L. W. PARKER,

	APPELLANT

vs.



THE FROST NATIONAL BANK OF SAN ANTONIO, 
SURVIVING BANK BY MERGER WITH FROST BANK NORTH AUSTIN, N. A.,



	APPELLEE

 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. 91-3054, HONORABLE JERRY DELLANA, JUDGE PRESIDING

 




 The Frost National Bank of San Antonio (the "Bank"), the surviving bank by
merger with the Frost Bank North Austin, N. A. (the "Frost Bank"), sued L. W. Parker on two
real estate lien notes.  The Bank sought judgment for a post-foreclosure deficiency claim on the
first note and for the full balance due on the second note.  Parker counterclaimed for wrongful
foreclosure.  Following a bench trial, the district court rendered judgment in favor of the Bank
on all matters.  Parker appeals only on the issues of his liability for the deficiency on the first note
and his wrongful foreclosure counterclaim.  We will affirm the judgment of the district court.


BACKGROUND 
	On July 16, 1987, L. W. Parker executed a promissory note ("Note 1") payable
to the Frost Bank in the sum of $405,000.  The note was secured by a deed of trust lien on
property located in Travis County.  Parker did not use this property as his residence.  Parker
defaulted on his Note 1 payments.  On March 22, 1988, Parker executed another promissory note
("Note 2") payable to the Frost Bank in the amount of $40,000.  This note also was secured by
a deed of trust lien on a separate piece of property located in Travis County.  Parker made no
payments on Note 2.
	On July 12, 1988, the Bank sent Parker a certified letter notifying him that Note
1 was in default and that the entire unpaid balance of the note was accelerated.  The Bank also
gave Parker notice of the posting of the property and notice of the substitute trustee's sale to be
held on August 2, 1988.  At some time after 3:30 p.m., on July 12, 1988, the notice of the
substitute trustee's sale was filed with the County Clerk of Travis County and was posted in the
Travis County Courthouse.  On August 2, 1988, the Bank purchased the property at public
auction for $350,000 and applied the bid amount to the indebtedness owing under Note 1.
	The Bank brought suit against Parker for the deficiency under Note 1 and for the
balance due under Note 2.  Parker counterclaimed for wrongful foreclosure and breach of
contract.  After a bench trial pursuant to certain joint stipulations of fact and law, the district court
rendered judgment in favor of the Bank on both notes and denied Parker's counterclaims. 
	Parker does not appeal the portion of the judgment relating to Note 2.  Parker does,
however, appeal the portion of the judgment holding him liable for the deficiency under Note 1. 
He contends the foreclosure is void because it was conducted in the absence of (1) timely notice
of the foreclosure sale; (2) notice of the intent to accelerate; and (3) notice of the opportunity to
cure.  He also appeals the take-nothing judgment on his counterclaim for wrongful foreclosure.


NOTICE OF FORECLOSURE SALE
	Section 51.002(b) of the Property Code (the "Code") provides, in pertinent part,
that "[n]otice of the sale, which must include a statement of the earliest time at which the sale will
occur, must be given at least 21 days before the date of the sale."  Tex. Prop. Code Ann. §
51.002(b) (West Supp. 1993).  In his first point of error, Parker argues that both the day on which
notice of the foreclosure is provided and the day of the sale are excluded when computing the
twenty-one day notice required by section 51.002(b) of the Code.  See id.  Conceding that the day
of sale is excluded in calculating the twenty-one day period, the Bank maintains that the day of
notice is included in the calculation of the time period.  Thus, we must determine whether section
51.002(b) of the Code requires the inclusion or exclusion of the day of notice in computing the
appropriate twenty-one day notice period.
	In 1973, the Tyler Court of Appeals construed the predecessor to section 51.002(b) (1)
to include the day of posting notice but to exclude the day of sale.  Hutson v. Sadler, 501 S.W.2d
728 (Tex. Civ. App.--Tyler 1973, no writ).  The Texas Legislature subsequently amended the
provision from "three consecutive weeks prior" to "at least twenty-one days preceding." (2)  Several
courts of appeals have followed the Hutson precedent:  Newman v. Woodhaven Nat'l Bank, Inc.,
762 S.W.2d 374 (Tex. App.--Fort Worth 1988, no writ); Concrete, Inc. v. Sprayberry, 691
S.W.2d 771 (Tex. App.--El Paso 1985, no writ); Hausmann v. Texas Sav. & Loan Ass'n, 585
S.W.2d 796 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.); see also Bryant v. Texas Am.
Bank/Levelland, 795 S.W.2d 915 (Tex. App.--Amarillo 1990, writ dism'd by agr.) (based on
different rationale, court reached same result).  We elect to follow the aforementioned caselaw
authority holding that the day of posting is included in the calculation of the twenty-one day notice
requirement of section 51.002(b) of the Code. (3)
	Parker urges us to analogize between the time period required in the present cause
and the time periods required for service of process and summary judgment.  Parker relies on a
case involving service of process, O'Connor v. Towns, 1 Tex. 107 (1846), for his assertion that
the "at least" language in section 51.002(b) of the Code requires both the date of posting and the
date of sale to be excluded in the computation of the time period for notice.  Although O'Connor
holds that both boundary dates must be excluded in the calculation of the requisite time period,
it does not hold that the words "at least" in a notice period mandate the exclusion of both
boundary dates.  We note that O'Connor involved a five day notice provision which the court
described as "extremely short notice."  See id. at 115.  Therefore, to include in the computation
either of the relevant days would further shorten an already short time period.  Finally, we note
that the notice period required in both the service of process and summary-judgment contexts are
distinguishable from the notice period for foreclosure sales as they involve legal procedures other
than foreclosure.  We reject Parker's invitation to treat the notice provision of section 51.002(b)
in the same fashion as notice for service of process and summary judgment.
	It is undisputed that, on July 12, 1988, the Bank gave Parker notice of the
scheduled foreclosure sale and that the sale occurred on August 2, 1988.  Thus, excluding the date
of sale and including the date of notice, twenty-one days expired before the date of the sale.  We
hold that the notice provided by the Bank complied with section 51.002(b).  We, therefore,
overrule Parker's point of error one.


NOTICE OF INTENT TO ACCELERATE
	In his second point of error, Parker alleges the trial court erred in its conclusion
that Parker waived his right to notice of intent to accelerate with regard to Note 1.
	It is well established that a note holder must notify the note's maker of the holder's
intent to accelerate the time for payment due on a note.  Shumway v. Horizon Credit Corp., 801
S.W.2d 890, 892 (Tex. 1991); Ogden v. Gibraltar Sav. Ass'n, 640 S.W.2d 232, 233 (Tex. 1982). 
However, "a waiver of 'notice of intent to accelerate' is effective to waive that right."  Shumway,
801 S.W.2d at 894.  To be effective, the waiver of the right to notice of the intent to accelerate
must be clear and unequivocal.  Id. at 893.  	
	On July 16, 1987, Parker executed the promissory note which contained the
following "WAIVERS AND CONSENTS" provision:  "Each of the Makers . . . severally waive
presentment for payment, demand, notice of intent to accelerate, notice of acceleration, protest
and notice of protest, dishonor and diligence in collecting and the bringing of suit . . . ." 
(Emphasis added).  This language clearly and unequivocally waived Parker's right to notice of the
intent to accelerate.
	However, Parker urges this Court to read together three instruments (4) executed
pursuant to the loan to determine their cumulative effect on the sufficiency of the waiver.  He cites
provisions in all three documents that contain language which Shumway declared was ineffective
to waive the right to notice of the intent to accelerate.  Parker maintains that a collective reading
of these documents demonstrates contractual conflict and vagueness which violate the standards
set forth in Shumway.  We find Parker's argument unpersuasive.  
	The court in Shumway merely held that language such as that cited by Parker is
insufficient to waive the right to notice of the intent to accelerate; the court did not hold that such
language ensures the right to notice and forever bars a maker from waiving the right in another
document.  Every instrument executed in conjunction with a promissory note need not contain the
necessary language in order to effectively waive the right to notice; such a requirement is
unnecessarily duplicative.  It is logical that the appropriate language for waiver of any rights
evolving from the creation of the note would be included in the section of the note entitled
"waivers and consents" and need not be included elsewhere.  Therefore, we hold it was not error
for the trial court to conclude that Parker had waived his right to notice of the intent to accelerate. 
We overrule point of error two.


NOTICE OF OPPORTUNITY TO CURE
	Parker alleges, in his third point of error, that the trial court improperly rendered
judgment against him because the Bank did not provide notice of the opportunity to cure pursuant
to section 51.002(d) of the Code which provides:


Notwithstanding any agreement to the contrary, the holder of the debt shall serve
a debtor in default under a deed of trust or other contract lien on real property used
as the debtor's residence with written notice by certified mail stating that the debtor
is in default under the deed of trust or contract.  The debtor must be given at least
20 days to cure the default before the entire debt is due and notice of sale is given.


Tex. Prop. Code § 51.002(d) (West Supp. 1993).  Specifically, Parker argues that section
51.002(d) of the Code imposes two distinct obligations on foreclosing lenders:  (1) written notice
of default must be provided to all home mortgagors and (2) all debtors, not only home
mortgagors, must be given the opportunity to cure.  We find this construction implausible.  The
two sentences in section 51.002(d) complement each other:  the first sentence imposes the written
notice requirement, and the second sentence establishes the amount of time that must be given to
cure subsequent to such notice and prior to acceleration.  See Savers Fed. Sav. & Loan Ass'n v.
Reetz, 888 F.2d 1497, 1507 (5th Cir. 1989) ("[I]n the case of 'real property used as the debtor's
residence,' the debtor must . . . be given 'at least 20 days to cure the default before the entire debt
is due and notice of sale is given.'").  Therefore, we conclude that the second sentence, like the
first sentence, applies only to defaults under liens on real property used as the debtor's residence. 
Accordingly, because the property in question was not used as Parker's residence, the Bank was
not required to comply with section 51.002(d) of the Code.  We overrule Parker's third point of
error.


WRONGFUL FORECLOSURE
	In his fourth point of error, Parker alleges that the district court erred in rendering
judgment that he take nothing on his counterclaim for wrongful foreclosure because the
foreclosure was void for the reasons he stated in his first three points of error.   Because we held
that the Bank complied with the statutory notice requirements and with the deed of trust, we
conclude that the take-nothing judgment rendered on the wrongful foreclosure counterclaim was
not in error.  We, therefore, overrule Parker's fourth point of error.


CONCLUSION
	Finding no error, we affirm the judgment of the district court.


  
					Mack Kidd, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed:   April 28, 1993
[Publish]
1.        Act of May 28, 1915, 34th Leg., 1st C.S., ch. 15, § 2, 1915 Tex. Gen. Laws 32, 33
(Tex. Rev. Civ. Stat. Ann. art. 3759, since repealed) (providing that "[n]otice of such
proposed sale shall be given by posting written notice thereof for three consecutive weeks
prior to the day of sale.").
2.        Act of May 22, 1975, 64th Leg., R.S., ch. 723, § 1, 1975 Tex. Gen. Laws 2354, 2354
(Tex. Rev. Civ. Stat. Ann. art. 3810, since repealed) (providing that notice must be
posted and given "at least 21 days preceding the date of sale").
3.        The Code Construction Act, Tex. Gov't Code Ann. §§ 311.001-032 (West 1988 &
Supp. 1993), provides for the exclusion of the first day and the inclusion of the last day in
calculating a period of days; we note that the end result under the Code Construction Act
would be the same as under the caselaw. 
4.        These instruments are the promissory note itself, the deed of trust, and the master
form deed of trust.

