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Show PAGE TNK FOUR RECORD DAILY APRIL THURSDAY, 19, I97.J In The Supreme Court Of The State Of Utah I James H. Lamont and Lotte Lamont, his wife. Plaintiffs and Appellants! or after the receipt of the letter by the defendants. No. 13077 The FILED April 5, v. Ivar Th. Evjen and Aslaugh S. Evjen, his wife( Defendants and Respondents. trial court 1973 1. 2. 3. L. M. Cummings, Clerk found as a fact: ... ... Plaintiffs had never given defendants notice that a payment had been missed in December of 1970. And then concluded as a matter of law: 1. Plaintiffs' failure to notify defendants of their default constitutes a material omission in the facts necessary to establish plaintiffs' claims and defendants are entitled to an Order of Dismissal. ELLETT, Justice: This is an appeal from a judgment rendered in favor of the defendants in an action to foreclose a uniform real estate contract by treating it as a mortgage pursuant to paragraph 16(c), which reads: In the case of Romero v. Schmidt the question of the effect of a tender the upon right of a plaintiff to foreclose pursuant to the option in a uniform real estate contract was before this court. We there held that a valid tender prevented the plaintiff from foreclosing on the contract as a note and mortgage. See Home Owners' Loan Corporation v. Washington, 108 Utah 469, 161 P. 2d 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 thirty days thereafter, the Seller, at his option shall have the following' 355 (1945); also see 52 Am. alternative remedies:' ... ... The Seller shall have the A. B. of Utah, default and a reasonable time in which to bring the contract current. The 41, as follows: reason for the rule is set forth in 52 Am. Jur. , Tender, This is so because the debt does not become due on the mere default in payment, but by affirmative action by which the creditor makes it known to the debtor that he intends to declare the whole debt due. The creditor is entitled to a reasonable time after default in which to exercise the option, but the option itself does not outlive the default. Such acceleration stipulations should be so construed, if possible and consistent with the language employed, as to give the protection intended thereby to both the debtor and the creditor. . . . . . . ... The contract was signed February 15, I960, and defendants made regular payments of $110.00 per month to the First Federal Savings It Loan Association as collecting agent for the plaintiffs, the sellers. The payment for December, 1970, was not made until January 4, 1971, and thereafter the defendants as buyers made regular monthly payments. Neither the First Federal Savings, the sellers (plaintiffs), nor the buyers .(defendants) knew a payment had been missed for over one year. On February 2, 1972, the chief accountant of the collecting agency wrote a letter to the defendants stating that the payment for December, 1970, had been missed and that all payments subsequent thereto were made late. The letter requested the defendants "to please see if you cannot arrange to bring your contract payments up to date. " The rule is especially applicable in cases like the instant one where the default was overlooked by all parties for some fifteen months. It appears that the plaintiffs failed to establish that they gave notice to the defendants of their election to treat the contract as a note and mortgage prior to a full tender of the amount due. Besides, the defendants were not given a reasonable time in which to make good the delinquent installment. The judgment of the trial court is affirmed. Costs are awarded to the Under date of February 29, 1972, the lawyer for the plaintiffs wrote a letter which was delivered to the defendants March 6, 1972. The letter contained the following language: respondents. WE CONCUR: lt is necessary and at this time that you bring all past due payments current begin making payments on the first of each month when they are due. No further periods of delinquincy sic will be tolerated. . . . On March 31, 1972, the plaintiffs mailed a certified E. R. Callister, New Actions Murray City Court - Doctors Credit vs & DONALD KENNICKER $72.75; services, atty 59829 vs Merchants T. P.Vuyk - Knight Adjustment Br M. D. WOODS AKA MARY DALE $75.00; account, T.P. Vuyk,atty WOODS; - Knight Adjustment Br. vs HOWARD W. JACKMAN $65.91; agreement; T. P.Vuyk 59830 atty - Doctors & Merchants Credit vs DONALD AND DONA 59831 $34.00; services, JOHNSON; T. P. Vuyk,atty 59832 - Doctors & Merchants V0GRINEC; Credit vs $100.00; services, T. P.Vuyk THOMAS atty 59833 - Doctors and Merchants JOHN R. AND VERBA Pltf$340.00; services, T. P.Vuyk, atty BAILEY; 59839 - LaMar MAYNARD SMITH; L. Jansen, 59835 ment vs Olsen vs $315. 00; agree. atty EmploySMITH; $579 E. L. atty Jansen, services, DONALD - Arch SULth dba Arch Accounting Seravices, vs JIM LORE R. MCCRAE WAYMENT; $50.00; services, B. Hash, L. Lord, atty 59842 Ray - Draper Bank & WAY atty 59837 - Walt Disney Distr.Co vs THE LEMON TREE, INC; $109. 11 account, H. C. Horne, M.D R. BURNS; $315.42 D. Halli day, atty - Floyd Draper vs - Credit of Bur WAYNE SLC L. PITT $l4l,48; services, R. G. Has-le- m, Judgments Murray City Court 59696- - Vtetem Stats Credit Assn. v. GLEN R. 315.50 to pltf. 59700- DON Doctors V. POOLE $27.39 to pltf. Bookbinding $399.68 COMUNIGRAPHICS Qulalty Oil v. 59716 TOSH $466.16 to pltf. Olympus Glass v . BRENT ft L. MARIE POPP $473.55 to pltf. BEPFU 59723- - Security Adjustm v. ROBERT ft PATRICIA $393.42 to pltf. nt GUNDERSON DONALD WILLIAMS Merchants 15wiiii.sc Everyone Else Tells You Only IIow Much It Will Cost Yon . . . We Tell Yon Wlint We Will I)o For You For This Cost. to pltf. 59731- - Intmtn v. Holding v. TOBY MAESTAS $148.65 to pltf. 5973- 2- Pearson Tire v. DAVID PERRY $91.20 to pltf. 59741- - v. WE WILL SERVICE AND MAINTAIN YOUR NEW LINCOLN OR MERCURY FREEl YES, FREEl FOR 2 YEARS OR 24.000 MILES WHEN YOU LEASE IT FROM Credit Bureau of GERHARD $195.90 to LEASE US-- AT NO EXTRA COST A NEW COMET, MONTEGO, COUGAR, MONTEREY, MARQUIS, AND CONTINENTAL, MARK IV FROM DON RICHARDS LINCOLN-MERCURRECEIVE FULL MAINTENANCE COUPONS (EXCEPT TIRES, ALIGNMENT, WHEEL BALANCES) HONORED AT ALL FORD AND Y H0ERRING pltf. Y THE NATION. EXTENDED MAINTENANCE NOMINAL COST ALSO. SMALL MILES A AT 40,000 DEALERS 59730- - Intenncmtain Hold in v. K9RTIS W. PIDGEGN $9.50 SLC what it takes LINCOLN-MERCUR- HARPER A LINCOLN MERCURY IS JUST GOOD BUSINESS Security Adjustment v. TGRKY L. AUSTIN 0278.42 to pltf. 59725- - Security Adjustment v. FROM - $$.11 to pltf. - Credit Bureau of EDWIN $148.28 . Hiller LEASING got Inc. v. Custom 59724- - vs BRUCE ROBERT DAVIS; $921. 98 account and services, R. G. Has lam, atty vs Jtf 59717- CASE; $628.00; money owed; T. Charlier, atty v. $98.28 to pltf. Trust we ve Clakr Learning v. 597140 - Jonathan services, SLC - 59713- - v. DON KENNETH 37 (1964). Management to pltf. to L. STEPHENS; $511. R. Knight, atty P. contract, vs pltf. RICHARD M. GAUHLE vs P. 2d $188.00 to JAMES DIXON GARY MARKHAM SLC Barton vs VERL R. DUNCAN; $101.00; damages M. R. Walker, atty Co. b. 59712- atty 59836 AND R. atty 59841 15 Utah 2d 300, 392 1. Collection 59702 vs RICHARD H. PHILLIPS; $226.62; accounts, R.G.Haslam 59845 All Season's Tire Center - Credit Bur. of 5980 - R. L. Tuckett, Justice J. Allan Crockett, Justice Murray City Court Royal contract; F. Henri Henriod, Justice Chief Justice Judgments JEWEL CHRISTENSEN DBA CHRISTY TRUCKING CO; $626.99 59844 JOHN - Inc. vs 59843 Credit vs 59834 59838 Jr. , letter to the defendants stating that they were electing to treat the uniform real estate contract "as a note and mortgage and foreclose upon the same immediately, the entire unpaid balance becoming due and payable. " In their briefs both counsel state that this letter was receipted for by the defendants April 3, 1972. On April 3, 1972, the defendants tendered all past due installments to the plaintiffs. The evidence does not show whether the tender was made before 59828 41. Before a seller of land under a uniform real estate contract can exercise of the options given him because of a failure on the part of the purchaser to any pay an installment as promised, he must give the purchaser notice of 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 C. Jur. , Tender, UP THROUGH REMEM15ER. . . TO VOLUME IS OHM 15FSIXESS AT DON RICHARDS OPEN TILL 9:30 WEEKDAYS (SUNDAYS 12-- LIXCOLX MERCURY CAPRI CALL BOB SVITAK 6) or PRESTON LEE 3469 SO. STATE SLC 262-923- 7 |