Johnston v. Austin

748 P.2d 1084, 73 Utah Adv. Rep. 40, 1988 Utah LEXIS 4, 1988 WL 773
CourtUtah Supreme Court
DecidedJanuary 4, 1988
Docket19401
StatusPublished
Cited by9 cases

This text of 748 P.2d 1084 (Johnston v. Austin) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Austin, 748 P.2d 1084, 73 Utah Adv. Rep. 40, 1988 Utah LEXIS 4, 1988 WL 773 (Utah 1988).

Opinions

STEWART, Associate Chief Justice:

The plaintiffs, Richard and Shauna Johnston and Thomas and Lois McDonald, sellers of land under a uniform real estate contract, appeal a summary dismissal of their complaint seeking to foreclose as a mortgage buyers' interest in land because of buyers’ failure to timely pay amounts due under the contract. The complaint was dismissed because the plaintiffs had not given the defendants written notice of default prior to filing the action, although the plaintiffs did give oral notification of default to the original buyers.

On January 15, 1979, the plaintiffs and Lloyd and Virginia Ann Austin entered into a uniform real estate contract for the sale and purchase of an apartment house in North Salt Lake, Utah. Paragraph 16 of the contract gives the sellers the following options if the buyers default:

16. In the event of a failure to comply with the terms hereof by the Buyer, or upon failure of the Buyer to make any payment or payments when the same shall become due, or within 30 days thereafter, the Seller, at his option shall have the following alternative remedies: A. Seller shall have the right, upon failure of the Buyer to remedy the default within five days after written notice, to be released from all obligations in law and in equity to convey said property, and all payments which have been made theretofore on this contract by the Buyer, shall be forfeited to the Seller as liquidated damages for the non-performance of the contract, and the Buyer agrees that the Seller may at his option re-enter and take possession of said premises without legal processes as in its first and former estate, together with all improvements and additions made by the Buyer thereon, and the said additions and improvements shall remain with the land and become the property of the Seller, the Buyer becoming at once a tenant at will of the Seller; or
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C. The Seller shall have the right, at his option, and upon written notice to the Buyer, to declare the entire unpaid balance hereunder at once due and payable, and may elect to treat this contract as a note and mortgage, and pass title to the Buyer subject thereto, and proceed immediately to foreclose the same in accordance with the laws of the State of Utah, and have the property sold and the [1086]*1086proceeds applied to the payment of the balance owing, including costs and attorney’s fees; and the Seller may have a judgment for any deficiency which may remain.

Since the sale to the Austins, the property has changed hands four times. All the named defendants claim some right, title, or interest in the property.

In 1980, after the Austins were late in making a payment to the plaintiffs, all the defendants entered into an escrow agreement with Escrow Services, Inc., whereby all defendants were to make their required payments to Escrow Services and Escrow Services would disburse the funds to those entitled to them. The plaintiffs were not parties to that agreement, although they accepted payment from Escrow Services for almost two years.

The Austins sent Escrow Services the June, 1982, payment and shortly before June 15, 1982, Escrow Services sent the plaintiffs a check for the payment due on that date. The check, however, was dishonored because of insufficient funds in Escrow Services’ account. The plaintiffs immediately notified the Austins orally that the check had been dishonored and demanded payment. In addition, the plaintiffs did not receive the payment due on July 15, 1982.

Besides the oral notice given prior to June 15, the plaintiffs verbally notified the Austins four other times between June 15 and July 19 that the June and July payments had not been received. The plaintiffs told the Austins that they expected payment in full and that they would not accept any payments beyond the thirty-day grace period. No notice of default was given to the other defendants.

On July 19, 1982, more than thirty days after they first orally notified the Austins of the default, the plaintiffs sent the Austins a written notice of acceleration pursuant to paragraph 16C of the contract. The notice declared that the entire indebtedness was due immediately and announced the plaintiffs’ intention to foreclose on the contract as a note and mortgage. On August 16, 1982, twenty-eight days after receiving written notice of acceleration, the Austins tendered to the plaintiffs the delinquent June and July payments, but they did not tender the entire indebtedness due as demanded by the July 19 notice. The plaintiffs refused the tender, reiterating that the entire indebtedness was due. Tenders and refusals were repeated several more times until the plaintiffs instituted this action. Since this action began, all payments under the contract have been tendered to the trial court pending resolution of the dispute.

The trial court dismissed the plaintiffs’ complaint with prejudice on the ground that verbal notice of default was insufficient as a matter of law. The court ruled that written notice of default should have been given to each party claiming an interest in the property, not just to the plaintiffs’ immediate buyers, and that the written notice should have informed the defendants what was necessary to cure the default.

On appeal, the plaintiffs claim that (1) their oral demands on the Austins were sufficient to satisfy the notice requirements of paragraph 16, (2) they were only required to give notice to their immediate buyers, (8) the defendants’ payment to the escrow company did not constitute payment to the plaintiffs since the escrow company was not the plaintiffs’ agent, and (4) since they had given adequate notice to their immediate buyers, who had not made payment directly to the plaintiffs, they, rather than the defendants, were entitled to summary judgment.

The parties agree that in forfeiture cases a seller must give a buyer some type of notice of default and that a seller must give a buyer a reasonable time to cure the default before the seller may exercise his option to declare a forfeiture under a uniform real estate contract. However, virtu-, ally all the cases cited by the parties in support of that proposition deal with a forfeiture option under a uniform real estate contract and not with an acceleration option. Forfeiture is a harsh remedy, and a seller must therefore give a buyer notice of default and a reasonable period of time in [1087]*1087which to cure the default before exercising a forfeiture provision. See First Security Bank v. Maxwell, 659 P.2d 1078, 1081 (Utah 1983); Grow v. Marwick Development Co., 621 P.2d 1249, 1251-52 (Utah 1980); Fuhriman v. Bissegger, 13 Utah 2d 379, 375 P.2d 27 (1962); Leone v. Zuniga, 84 Utah 417, 34 P.2d 699, 702-703 (1934). In fact, written notice of default is expressly required by paragraph 16A of the contract. No such clause is found in the acceleration provision, paragraph 16C.

Acceleration provisions are generally less harsh than forfeiture provisions. This Court has recognized a distinction between acceleration and forfeiture in connection with acceleration of mortgage payments and foreclosure of mortgages:

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Johnston v. Austin
748 P.2d 1084 (Utah Supreme Court, 1988)

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Bluebook (online)
748 P.2d 1084, 73 Utah Adv. Rep. 40, 1988 Utah LEXIS 4, 1988 WL 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-austin-utah-1988.