Texas Commercial Law Firm

2. Waiver of notice of intent to accelerate. Notice of default and notice of intention to accelerate may be waived by agreement in non-residential, non-consumer transactions, if the waiver clauses are very specific in their wording. Shumway v. Horizon, 801 S.W.2d 890 (Tex. 1991). Notice of default and notice of intent to accelerate may not, however, be waived in residential or consumer transactions. Tex. Prop. Code Ann. §51.002(d) (Vernon 1994). Similarly, the provisions of the federal Fair Debt Collection Practices Act (discussed below) may not be waived. 3. Impact of Fair Debt Collection Practices Act on consumer loans. In addition to the FNMA 30-day right to cure requirement, the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§1692 et seq, requires that a debt collector (a term which generally includes attorneys) provide the borrower 30 days in which to request verification of the debt. Recent case law has interpreted this provision of the FDCPA to mean that a debt collector may not take any action during this 30-day notice period. (See §II.L. below for further discussion of FDCPA).

The FDCPA 30-day period and the FNMA notice periods may overlap, however. For example, if an attorney sends the FNMA right-to-cure demand letter and includes the FDCPA Debt Verification Notice in the same letter, both 30-day periods run concurrently. The time necessary prior to foreclosure will be extended, however, if the attorney's initial correspondence is the 21-day Notice of Sale. This situation will occur if the lender sends the FNMA 30-day right-to-cure notice before referring the matter to the attorney. The 21-day Notice should be increased under these circumstances to 30 days to assure that foreclosure does not occur before the expiration of the FDCPA 30-day debt verification period.

Next Page>>> | Previous Page>>>