In any case, but especially in the absence of language in the note or security instruments waiving notice, the Bank should send out a letter notifying the debtor or the debtors and anyone else obligated to pay the debt of the default under the note and specifying a reasonable period of time within which the debtor may cure the default under the note. The notice should refer to the default, state what action is required to cure the default, including a demand for past-due payments under the note, allow a reasonable time to cure (at a minimum, twenty days is recommended), and, if the entire debt is not then due, state that if the default is not cured within the allowed time, the note will be accelerated. If the note has not yet become due, as in the case of an installment note which has not matured, the debtor must also be notified of intent to accelerate. This notice of intent to accelerate is often incorporated into the default notice.
Many notes and deeds of trust waive notice of intent to accelerate, notice of acceleration, and often waive notice of default. The Bank should carefully review the waivers to see that each and every type of notice is expressly waived. To be effective, the waivers must specifically waive “demand, notice of intent to accelerate, and notice of acceleration.” Although clear and unequivocal waivers are generally effective, the better practice is to give the notices in order to limit issues the debtor may raise in a challenge to the sale.
Loans secured by the debtor’s residence, the Texas Property Code requires that notice of default be given. Notice of default and notice of intent to accelerate, if necessary, may be given in a combined notice.