First Federal Savings Bank v. McCubbins

McANULTY,

Dissenting Justice.

Respectfully, I dissent from the majority’s conclusion. Summary judgment should not have been granted in this case because there are genuine issues of material fact concerning First Federal Savings Bank’s intent to release McCubbins from his obligation on the $16,000 note. The evidence brought forward by First Federal indeed tended to show that the discharge of the obligation on the note was unintentional. That issue was appropriate for determination by a jury.

The affidavit from the bank official alleged personal knowledge by this official as to the loan history. I do not believe affidavits were required from the loan officer who wrote the letter or the vice president who signed the deed of release, since the affidavit the bank provided purports to explain their actions. In addition, the majority ignores the fact of the similarity in loan numbers of the two loans, and the fact that the letter sent to McCubbins only referenced the loan number on the smaller loan. Thereafter, McCubbins continued making payments on the larger loan for approximately a year after receiving the letter and the note. Moreover, the bank asserts that its mailing of the original note and mortgage was a mistake, and its records showed a balance remained on the larger loan. There was evidence to support First Federal’s contention that the two loans had been confused and that it lacked the requisite intent to cancel the instrument. This was a disputed fact question.

In Steelvest Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky.1991), we declared our adherence to the principle that “summary judgment is to be cautiously applied and should not be used as a substitute for trial.” We further instructed that summary judgment:

should only be used “to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” It is vital that we not sever litigants from their right of trial, if they do in fact have valid issues to try, just for the sake of efficiency and expediency.

Id. at 483. Under the Kentucky standard for summary judgment, the movant does not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy. Id. at 482. Viewing the evidence in the light most favorable to First Federal, there remains the controversy of whether the note was cancelled as a matter of mistake, and thus summary judgment was not proper.

Further, I believe Richardson v. First Nat'l Bank of Louisville, 660 S.W.2d 678 (Ky.App.1983), is properly applicable in this instance where a lending institution alleges error in the discharge or cancellation of a debt. The majority distinguishes Richardson based on the time when the bank acted to correct the situation. I do not believe the time difference is disposi-tive, given that McCubbins continued to pay for a year, and that 20 months may have represented the earliest opportunity for the bank to act on the error. Since the time factor is not material in terms of establishing intent or voluntariness in *206these types of cases, I do not believe the time difference is a sufficient basis for distinguishing Richardson. Under Richardson, KRS 355.3-604 provides for discharge only if the act of the bank was an intentional and voluntary act. Thus, this makes the voluntariness of the act a question of fact for a jury.

ROACH, J., joins this dissenting opinion.