Menke v. First National Bank

309 S.E.2d 835, 168 Ga. App. 495, 1983 Ga. App. LEXIS 2827
CourtCourt of Appeals of Georgia
DecidedOctober 3, 1983
Docket66093, 66094, 66095
StatusPublished
Cited by13 cases

This text of 309 S.E.2d 835 (Menke v. First National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Menke v. First National Bank, 309 S.E.2d 835, 168 Ga. App. 495, 1983 Ga. App. LEXIS 2827 (Ga. Ct. App. 1983).

Opinions

Carley, Judge.

The issues presented for review in the three instant appeals are identical and involve the construction of the following acceleration provision of a promissory note: “Notwithstanding any other provisions of this note, holder must, before the exercise of his option to declare the entire remaining balance due and payable give maker written notice specifying the default and giving maker fifteen (15) days in which to cure said default. Said notice must be by certified [496]*496mail addressed to the maker’s last address.” (Emphasis supplied.)

The question arises within the following undisputed factual context: Appellant is the maker and appellee is the holder of certain promissory notes which contain the above quoted provision. It is undisputed that the notes were in default and that appellee sent written notice to appellant which specified the default on each of the notes and which gave him fifteen days within which to cure it. The written notices were sent certified mail, return receipt requested, on January 11,1982, to appellant’s last known address. The notices were all subsequently returned to appellee by the postal service as having been “unclaimed” by appellant.

On February 15, 1982, appellee filed three separate suits, each seeking to recover the full accelerated unpaid balance on various notes, plus interest, late fees, attorney fees and costs. Service of the three complaints was made on February 17, 1982. On February 27, 1982, appellant tendered an amount to appellee which would have been sufficient to cover the unpaid monthly installments on the notes, but which was insufficient to cover the full unpaid accelerated balances thereon. When appellee refused this tender and insisted upon payment of the full accelerated balance on each note, appellant filed his answer to the three complaints, denying that the full unpaid balances were due and owing thereon.

Subsequently, both appellee and appellant moved for summary judgment in all three cases. In support of his motions and in opposition to appellee’s, appellant asserted that he had never received appellee’s notices of acceleration, apparently because he was out of town at all times prior to their being returned as “unclaimed” by the postal service. According to appellant, he first became aware of the contents of the written notices of acceleration by virtue of the fact that copies thereof were attached as exhibits to the complaints. Appellant further asserted that, within fifteen days after service of the complaints, he had cured the default by tendering the amounts specified in those notices as being in arrears. Appellee’s position on the cross-motions for summary judgment was that it had given appellant “notice of default as required by the terms of said Note[s]” and that appellant had “failed to cure the default within the time specified.” Accordingly, the decisive issue in the cross-motions for summary judgment was whether the “notice” of acceleration contemplated by the terms of the notes was satisfied, as appellant contended, only upon their actual receipt by him or, as appellee contended, simply by its act of mailing them.

After conducting a hearing on the cross-motions, the trial court granted appellee’s motions and denied appellant’s. Notices of appeal were filed by appellant from the trial court’s order in each of the three [497]*497cases and the resulting appeals have been consolidated for disposition in this single opinion.

1. The sole issue presented for review in these cases is whether or not appellant is entitled to claim a right to cure the defaults or whether he is obligated to pay the full accelerated unpaid balance thereon. See generally McRae v. Federal Land Bank, 36 Ga. App. 51 (135 SE 112) (1926). Appellee contends that it is owed the full unpaid balances because appellant failed to cure the defaults by paying the installment arrearages within fifteen days from the date that it mailed its acceleration notices. Appellant, on the other hand, asserts a right to cure the defaults by paying the installment arrearages within fifteen days of first receiving written notice of acceleration in the form of the served complaints, a time when, according to appellee, the unpaid balances had already been accelerated and the only cure possible was payment of the entire accelerated amounts.

On the uncontroverted evidence before us, the questions of appellant’s right to “cure” the underlying defaults and whether that right was properly exercised are questions of law, not of fact. “[T]he construction or sufficiency of a notice is for the court. [Cits.]” Great Central Ins. Co. v. Bowery Savings Bank, 142 Ga. App. 630, 631 (236 SE2d 772) (1977).

It is clear that appellee’s option to accelerate the entire remaining unpaid balances due on the notes was predicated upon the giving of written notice to appellant and that appellee “would have to exercise the option in order for the note[s] to become due and payable. [Cits.]” Barnwell v. Hanson, 80 Ga. App. 738, 741 (57 SE2d 348) (1950). See also Woodstock Rd. Inv. Prop. v. Lacy, 149 Ga. App. 593, 594 (2) (254 SE2d 910) (1979). “Notice is defined as ‘information; the result of observation, whether by senses or the mind; knowledge of the existence of a fact or state of affairs; the means of knowledge.’ [Cit.]” Hamilton v. Edwards, 245 Ga. 810, 811 (267 SE2d 246) (1980).

“ ‘[W]here notice is required to be given, it is generally held, in the absence of anything appearing to the contrary, that the notice is not complete until it is received; and that, while mailing a notice duly directed and stamped may furnish presumptive evidence of its receipt, it does not alone constitute notice. [Cits.]’ [Cits.]” Favors v. Travelers Ins. Co., 150 Ga. App. 741, 744 (258 SE2d 554) (1979) (construing statutory notice provision). See also Hamilton v. Edwards, supra (construing statutory notice provision). This is a rule not merely of statutory construction; it is also applicable in the construction of contracts. See Puryear v. Farmers Mut. Ins. Assn., 137 Ga. 579, 581 (73 SE 851) (1911) (construing a policy of insurance); Musgrove v. Long, 248 Ga. 902 (287 SE2d 23) (1982) (construing an option to purchase). The operative provision in the notes in the [498]*498instant cases obligated appellee to “give” appellant notice, not merely to send him notice. Compare Genone v. Citizens Ins. Co., 207 Ga. 83, 86 (2) (60 SE2d 125) (1950) (construing a policy of insurance). Nor did the provision otherwise provide that the mere mailing of written notice to appellant would in and of itself constitute the contemplated “giving” of the requisite notice. Compare Genone v. Citizens Ins. Co., supra; Favors v. Travelers Ins. Co., supra; St. Paul Fire &c. Ins. Co. v. C.I.T. Corp., 55 Ga. App. 101 (189 SE 390) (1936). Under these circumstances, it would appear that the proper construction of the provision is that mailing of the notices was contemplated as the means and method by which notice to appellant would be effectuated, not the contemplated “notice” itself, and that for “notice to be effectuated appellant would have to have received them.” Puryear v. Farmers Mut. Ins. Assn., supra; Hamilton v. Edwards, supra; Musgrove v. Long, supra; Favors v. Travelers Ins. Co., supra.

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Bluebook (online)
309 S.E.2d 835, 168 Ga. App. 495, 1983 Ga. App. LEXIS 2827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menke-v-first-national-bank-gactapp-1983.