Shumway v. Horizon Credit Corp.

801 S.W.2d 890, 13 U.C.C. Rep. Serv. 2d (West) 1174, 1991 Tex. LEXIS 5, 1991 WL 3156
CourtTexas Supreme Court
DecidedJanuary 16, 1991
DocketC-8669
StatusPublished
Cited by137 cases

This text of 801 S.W.2d 890 (Shumway v. Horizon Credit Corp.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 13 U.C.C. Rep. Serv. 2d (West) 1174, 1991 Tex. LEXIS 5, 1991 WL 3156 (Tex. 1991).

Opinions

OPINION

HECHT, Justice.

The question presented is whether the makers of a promissory note contractually waived their rights to presentment, notice of the note holder’s intent to accelerate, and notice of acceleration of the balance due on the note upon default. The trial court rendered summary judgment for the note holder, and the court of appeals affirmed. 768 S.W.2d 387. We hold that the makers waived presentment and notice of acceleration, but not notice of intent to accelerate. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

I

Gene and Sandra Shumway borrowed the money from Horizon Credit Corporation to buy a sailboat. The Shumways signed a promissory note payable to Horizon in monthly installments over a period of fifteen years. Before the loan was repaid, the boat was damaged in an accident. The Shumways considered the damage to be past repair, but their insurer did not. Shortly after this dispute arose, the Shum-ways stopped paying their monthly installments to Horizon, in breach of their obligations under the note.1

Several months later, Horizon accelerated the payments due on the note and sued the Shumways for the entire unpaid balance plus interest.2 Horizon moved for summary judgment, supported by its affidavit stating that it had “exercised its rights in accordance with the written agreement [i.ethe note] to accelerate the Promissory Note and declare all remaining payments due and owing.” The Shumways responded that Horizon should look to their [892]*892insurer for payment because the boat was a total loss. The trial court granted Horizon’s motion.

In the court of appeals, the Shumways contended that the summary judgment record did not conclusively establish their liability on the note, the amount due, or proper demand and acceleration by Horizon. The appeals court rejected all their contentions. The majority of the court held that the Shumways had expressly waived demand, notice of intent to accelerate, and notice of acceleration by the following provision in the note:

ENTIRE BALANCE DUE. If I default under this Note, you may require that the entire unpaid balance of the Amount of Loan plus accrued interest and late charges be paid at once without prior notice or demand.

768 S.W.2d at 388. One justice dissented, arguing that this language waived demand and notice of acceleration, but not notice of intent to accelerate. 768 S.W.2d at 389-91.

Now before this Court, the Shumways no longer dispute that they were in default of their obligations under the note, or that the amount of their liability was established by the summary judgment evidence. Horizon does not dispute that it neither made demand upon the Shumways for payment pri- or to acceleration, nor gave the Shumways notice of its intent to accelerate, or its acceleration of, the payments due under the note. Thus, the sole issue before us is whether the Shumways waived such presentment and notice under the terms of the note.

II

Under the Texas Uniform Commercial Code (UCC),3 a demand upon the maker of a promissory note to pay the note is called presentment. UCC § 3.504(a).4 Ordinarily, the UCC does not require presentment of a note to a maker or other primarily liable party. See UCC § 3.501. However, presentment to the maker of a note is required before the note holder can exercise an optional right to accelerate the time for any payment due on the note. Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233 (Tex.1982); Allen Sales & Servicenter v. Ryan, 525 S.W.2d 863, 865 (Tex.1975); Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 616-17 (1948). The note holder must also notify the maker both of his intent to accelerate and of the acceleration. Ogden, 640 S.W.2d at 233; Allen Sales, 525 S.W.2d at 865; Faulk, 214 S.W.2d at 616-17.

Presentment and notice can be waived. UCC section 3.511(b)(1) states: “Presentment or notice or protest as the case may be is entirely excused when the party to be charged has waived it expressly or by implication either before or after it is due_”5 As early as 1854, and as recently as 1982, this Court has recognized [893]*893that parties to a promissory note can waive presentment and notice. Sydnor v. Gascoigne, 11 Tex. 449, 456 (1854); Ogden, 640 S.W.2d at 233. In Ogden, the Court stated:

Thus, in the 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.

Id. (emphasis added). Texas courts of appeals have consistently followed this rule.6

We have not previously stated how definite or specific a waiver of presentment and notice must be to be effective. We have held that, as a rule, acceleration provisions must be clear and unequivocal. Ramo, Inc. v. English, 500 5.W.2d 461, 466 (Tex.1973); Motor & Indus. Fin. Corp. v. Hughes, 302 S.W.2d 386, 394 (1957). If the meaning of a term in an acceleration clause is open to reasonable doubt, it should be construed to avoid acceleration. Ramo, 500 S.W.2d at 466. The harshness of the option of accelerating the maturity of an extended obligation requires both a strict reading of the terms of the option and notice to the debtor. Brown v. Hewitt, 143 S.W.2d 223 (Tex.Civ.App.—Galveston 1940, writ ref'd), cited in Ogden, 640 S.W.2d at 233; accord, Allen Sales, 525 S.W.2d at 866. This same principle also requires that notice of intent to accelerate and notice of acceleration be clear and unequivocal. See Ogden, 640 S.W.2d at 234. Given that an option to accelerate an obligation can neither be created nor exercised except in terms clear and unequivocal, it follows that a waiver of the right to notice of the intent to exercise an acceleration option cannot be effective unless it meets equally exacting standards. If the right to notice could be waived in general terms, the purpose of the rule requiring precision in provisions creating an option to accelerate would be significantly impaired. We hold, therefore, that a waiver of presentment, notice of intent to accelerate, and notice of acceleration is effective if and only if it is clear and unequivocal.

To meet this standard, a waiver provision must state specifically and separately the rights surrendered. Waiver of “demand” or “presentment”, and of “notice” or “notice 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 declare this note immediately due”); Slivka v. Swiss Avenue Bank, 653 S.W.2d 939

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Bluebook (online)
801 S.W.2d 890, 13 U.C.C. Rep. Serv. 2d (West) 1174, 1991 Tex. LEXIS 5, 1991 WL 3156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shumway-v-horizon-credit-corp-tex-1991.