Hayes v. American National Bank of Powell

URBIGKIT, Justice,

specially concurring, with whom MACY, Justice, joins.

A complex three-party loan transaction involving settlement, stipulations and contentions of limited guarantee is resolved in this case without trial by summary judgment adopted motion. I would affirm the decision of the trial court but differ from the majority in reasoning and factual asser*607tions. My concern partially reaches factual conflicts that may exist but are not relevant, but primarily statements of law with which I have question or open disagreement.

Sequentially, the facts of this case include:

I. May 19, 1980, appellant Rodney Hayes (son) obtained a $35,000 loan from appellee American National Bank of Powell (Bank) as secured by a mortgage on a 20-acre tract on the North Fork in Canyon Lake Estates (mortgaged property).

2. June 2, 1982, Norman J. Hayes (father) executes a $116,902.46 note payable to the Bank. This note carries a reverse side general guarantee executed by the son.1

3. September 28, 1982, son writes the Bank that the mortgaged property will constitute security up to $35,000 (on the father’s note).2

*6084. September 23, 1983, son sells the mortgaged property (Kuzara contract) and simultaneously makes a deal with the secured lender, the Bank, for a release of its mortgage. It is this transaction where the principle basis for the appeal is derived.

The Kuzara contract provided:

d. Provided, however, that the SELLER agrees to deposit $5,000.00 of the original down payment as set forth above with the Security Bank in Basin, Wyoming in a special escrow fund, which, along with all monthly payments, shall be held by such bank until payment in full is made by BUYER under the terms of this Contract. At such time, if the mortgage at the American National Bank in Powell, Wyoming has not been fully satisfied, said amount shall be delivered to American National Bank in full satisfaction of the outstanding mortgage. The bank has agreed to the terms of this provision. Provided further, in the event that an amount lesser than the total of $35,000.00 is necessary to clear such mortgage, said amount shall be paid to the American National Bank and the balance of the $35,000.00 shall be paid to Rodney Hayes. Provided further, that if the mortgage has been fully released previous to the payment in full by BUYER- as contemplated herein, the total amount of $35,000.00 shall be delivered to Rodney Hayes upon release of such mortgage. If BUYER defaults under the general provisions of this Contract, the escrow is instructed to deliver contents of this account to SELLER.
* * * * * *
7. PRIOR ENCUMBRANCES. The parties acnkowledge [sic] that the PROPERTY is subject to a prior encumbrance in the form of a mortgage executed by SELLER in favor of the American National Bank of Powell dated May 19, 1980, and recorded of Park County, Wyoming. As of September 16, 1983, the indebtedness represented by said mortgage totals $42,042.77, being the unpaid principal balance of $35,000.00 plus accrued interest. In order to assure BUYERS that said mortgage will be paid and kept current in all respects, SELLER will pay $12,042.77 to American National Bank, which represents the difference between the unpaid balance of this Contract and the total unpaid obligation secured by said mortgage.
In addition, all of BUYERS’ payments shall be paid into the escrow and the escrow agent shall pay the same to American National Bank, or obligation secured by said. Because BUYERS’ payments will not match the payment on SELLER’S obligation due to BUYERS 10 percent interest rate, SELLER will escrow an additional $5,000.00 to cover the difference between SELLER’S accruing obligation and BUYER’S payments during the term of this Contract. The escrow agent shall draw sufficient funds from the escrow to pay the difference between BUYERS’ payment and the payment due from SELLER.

As a constituent part of the transaction, an original and then revised escrow instruction was executed providing for payment to the Bank by the escrow agent which latter document stated:

*609YOU ARE HEREBY AUTHORIZED to pay to the American National Bank of Powell the original down payment of $5,000.00 deposited into escrow by Seller, together with all monthly payments of $322.50 which have been deposited into the escrow account on or before the 1st day of each month beginning November 1, 1983. You are further authorized to forward to the American National Bank each monthly payment received from Buyer in accordance with the contract entered into by and between Buyer and Seller and dated the 23rd day of September, 1983, as well as the final payment due from Buyer on December 1, 1986.
These revised escrow instructions are made in consideration of and based upon the agreement of the American National Bank of Powell attached hereto.

The Bank concurred in writing with this escrow arrangement and payment process including provision for ultimate release of mortgage in favor of the purchaser, Ku-zara.3

5. March 3, 1983, father filed a Chapter 11 bankruptcy which, after a complex series of events and litigation, resulted on September 14, 1987 in his stipulation for settlement of claims with the Bank. It is this stipulation and settlement document which include terms of the bankruptcy plan which reaches back to the Kuzara contract in issue development to establish the argument whether the stipulation and settlement by the father in the bankruptcy proceeding provided a satisfaction of the $35,-000 obligation originally derived from the son’s loan. If the debt was released, it would then relate to the funds retention right of the Bank in the Kuzara sale proceeds. It is this consideration whether the bankruptcy plan and stipulation satisfied the debt involved in the Kuzara contract which presents the sole appellate issue with which we should be concerned.

The stipulation itself did not include any language which directly addressed the Ku-zara contract or its proceeds. The documentary trail reverts to the amended bankruptcy reorganization plan and presents inquiry whether the dealing between the Bank and the father under those proceedings fully satisfied4 that part of the debt for which the mortgaged property was security. The proviso language as an exception to the release clause in the reorganization plan stated:

Except for such security interests or mortgages i[t] holds in property which is not property of the estate, the proceeds of which shall also be paid against this claim in accordance with the agreement between such third party.

The issue is whether this proviso language excepted the arrangement and payment provisions in the escrowed Kuzara contract from settlement terms.

Consequently, we have the question of an issue of fact or, even if there is no issue of fact as a legal result, did the bankruptcy settlement accomplish a satisfaction of the original indebtedness for the guarantor to also be released from any obligation so that he would be entitled to demand payment of the Kuzara contract funds to him? The trial court found in opinion letter and decision that “it [was] clear that the amended reorganization plan referred] to the Kuzara Contract and the funds paid pursuant to it.” I concur in that interpretation and conclusion and do not find an issue of fact within this record raised to the *610contrary.5 Having reached the conclusion that, as a matter of undisputed fact the documentation which established the “settlement” between the Bank and the father in the bankruptcy proceeding did not purport to extinguish the continued liability of the son as related to the Kuzara contract funds, there remains the further question whether what the Bank did in dealing with the principal in bankruptcy without express agreement to do so would trigger a release of the suretyship responsibility of the son.

In analyzing this conception, we should recognize the transactions for what they were, starting with the father’s assumption of his son’s obligation by inclusion in the $116,902.46 loan and the son’s continued responsibility for his initial debt by both guarantee and mortgage pledge. Application of the very simplistic but hornbook rule that a discharge of a debtor in a bankruptcy proceeding does not extinguish obligations of guarantors resolves this issue and justifies my special concurrence in affirming the action of the trial court. Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (10th Cir.1984); 11 U.S.C.A. § 524(e); 9A Am.Jur.2d Bankruptcy § 782 (1980).

. There are two copies of the note outstanding, one of which carries a term due date and the other with the stated date marked out and the insertion made of "demand” in handwriting. In my perception, this is a non-issue in this case, although if a material issue is presented, the fact finder would be faced with determining the marked out date was ineffective and, when executed, the note contained a typed due date.

There is a second non-issue which, however, I believe has considerable opportunity as obiter dictum to cause mischief in the law. The argument develops in discussion by the majority as to whether the father's Chapter 11 bankruptcy filing automatically accelerates an undue term note as to a guarantor when the note, not being due, was not in default. Not only do I find the question irrelevant to the holding in this case, but I expressly doubt, if not explicitly question, the non-determinative conclusion which, without citation of authority, is advanced by this majority.

The effect of the automatic stay on a promissory note clause providing for automatic acceleration upon bankruptcy is far from certain but reasonably consistent, at least when the payment schedule of the indebtedness is not in default. See Riggs National Bank of Washington, D.C. v. Perry, 729 F.2d 982 (4th Cir.1984); Matter of Bryant, 43 B.R. 189 (Bkrtcy.E.D.Mich.1984); Matter of Rose, 21 B.R. 272 (Bkrtcy.D.N.J.1982); In re Winters, 69 B.R. 145 (Bkrtcy.D.Or.1986); and In re Horton, 15 B.R. 403 (Bkrtcy.E.D.Va.1981). Cf. In re Bell, 700 F.2d 1053 (6th Cir.1983) and Kuney, The Bank Guaranty Agreement: The Emerging Threat of the Bankruptcy Stay, 41 Bus.Law. 77 (1985). Reference is also required to 11 U.S.C. § 365(e)(1)(B) and attendant remedies concept. See also Matter of LHD Realty Corp., 726 F.2d 327 (7th Cir.1984); In re Davidson Lumber Company, Inc., 24 B.R. 49 (Bkrtcy.S.D.Fla.1982); Greenberg v. Fincher & Son Real Estate, Inc., 753 S.W.2d 506 (Tex.1988); and In re Arrow Huss, Inc., 51 B.R. 853 (Bkrtcy.D.Utah 1985). See 11 U.S.C. § 1123(a)(5)(G) and § 1124. It must be noted that none of this volume of bankruptcy literature necessarily determines the further question whether the debt can be accelerated as to the indemnitor-guarantor if the payment schedule is currently maintained when the principal debtor gives cause to invoke the bankruptcy filing acceleration clause. Presented is the ancillary question whether the guarantors or indemnitors have a duty exceeding a maintenance of payments on a current schedule for an installment obligation to also guarantee that the principal does not file bankruptcy even if that filing creates no adverse effect on the current rights of the lender.

. Out of the father’s note and the son's guarantee and assignment of the mortgaged property for security, two other non-issues are created.

Considerable discussion at trial and recitation by this majority confuse unnecessarily whether the son’s guarantee was limited to 135,000 (plus interest) or generally guaranteed the entire 1116,902.46 amount. This majority attempts a factual disposition by resolution as a matter of law on a parol evidence basis. I do not agree with that as a matter of law, but the subject raises no issue presented by this appeal. On a legal basis, all negotiating principals agreed their intent was for a $35,000 guarantee with only a possible issue about interest on that $35,000, which was obviously due and unpaid and perhaps still due on the debt since origination in 1980. I reject the thesis for this academic argument that parol evidence denies a remedy where the participants all agree to the intent at the time of the execution of the document. Cordova v. Gosar, 719 P.2d 625 (Wyo.1986); Western National Bank of Lovell v. Moncur, 624 P.2d 765 (Wyo.1981); Arndt v. Sheridan Congregation of Jehovah’s Witnesses, Inc., 429 P.2d 326 (Wyo.1967). Cf. Bethurem v. Hammett, 736 P.2d 1128 (Wyo.1987).

The subject is a non-issue since the Bank makes no claim against the son which exceeds the $35,000 plus accrued interest. Additionally, the subject of accrued interest is not now present since only a partial summary judgment was entered and contended liability of the son for an additional payment is derived from an even later agreement, see event 4, infra. In considering the counterclaim for the purposes of the summary judgment, the trial court discerned that an issue of fact existed and denied relief. Consequently, there is only the original complaint for present appeal leaving the counterclaim undecided and the appeal is authenti*608cated by a W.R.C.P. 54(b) certification that no just cause for delay existed.

The second non-issue is whether the son’s $35,000 debt was assumed in effect by inclusion in the father’s $116,902.46 note. If it made any difference, we should be able to rely on what the Bank’s attorney told the trial court in written brief as consistent with trial testimony and as repeated in the brief presently before us for review:

3. On or about June 2, 1982, Norman Hayes, father of Plaintiff * * *, executed and delivered to Defendant his promissory note in the amount of $116,902.46, which amount included the $35,000.00 debt owed by Plaintiff. Plaintiff was guarantor of the $116,902.46 note * * *.
4. On or about September 28, 1982, Plaintiff by letter authorized use of the real property as security for $35,000.00 of the Norman Hayes note * * * upon which Plaintiff was guarantor * * *.

Even if we were to make a factual issue out of the undisputed status, it really does not make any difference in the case since the documentation upon which present appeal is based does not present a claim in excess of $35,000 plus interest, which total was clearly guaranteed by the son within any concept of the factual trail of this record.

. Out of this transaction, the unpaid $12,042.77 was retained for contest in the presently nondet-ermined counterclaim.

. I do not find that “fully satisfied” is an ambiguous term either within the context of this case or as an empirical status of arrangements between contracting parties. “We are unable to find any legal definition of the word ‘forgiven’ as here used, but we construe the word as synonymous with ‘cancelled,’ ‘discharged’ or ‘fully satisfied.' ’’ Colorado Herald Publishing Co. v. Neuhaus, 117 Colo. 172, 184 P.2d 1011, 1013 (1947). One of the synonyms for "satisfy" is “settle.” Burton, Legal Thesaurus 460 (1980). “Compromise” does not necessarily mean something different than “satisfaction.” B. Garner, A Dictionary of Modern Legal Usage 10 (1987). “Full satisfaction” as used in the reorganization plan and the stipulation related to settlement of the litigable issues in bankruptcy as claims to funds and assets remaining available and certainly did not determine that the original note executed by the father had been paid in full. See Hill v. Breeden, 53 Wyo. 125, 79 P.2d 482 (1938).

. It is also absolutely clear from the record the Bank never received, and likely never will receive, payment in full for the total of the father’s note with accrued interest. Undoubtedly, the deficiency was substantial, although the amount would not be completely determined until all of the chattels which were part of the repossession agreement included in the plan were liquidated and totals computed, including interest, accumulated costs and substantial attorney’s fees.