Cache National Bank v. Lusher

Justice SCOTT,

dissenting:

In Cache Nat’l Bank v. Lusher, No. 92CA0077 (Colo.App. March 18, 1998) (not selected for official publication), we granted certiorari to decide “[wjhether the court of appeals erred in holding that .when one comaker of a note, which is secured by real property, transfers the property to the other co-maker, the statute of limitations is measured only by the obligation of the transferee-maker.” See maj. op. at 955-956. The majority, however, avoids that issue and holds that because Shirley Watts’ indebtedness on the promissory note was joint and several with her co-maker, “the natural construction of the promissory note is that each maker encumbered her or his interest to secure the payment of all obligations owed by both makers, Shirley Watts and Larry Watts.” Maj. op. at 957. Because the majority’s analysis departs from the clear language of the controlling statutes and well-established precedent of this court that has stood for more than a century, I respectfully dissent.

I would have preferred to address the question upon which certiorari was granted. By failing to address that issue, the majority implicitly holds that an agency naturally exists between co-makers of a note such that one co-maker has the power to toll the statute of limitations as to the obligations of the other co-maker, all despite the lack of notice or participation by that other co-maker. In reaching its conclusion, the majority, in effect, chooses not to follow the clear language of limitations statutes adopted by the General Assembly. I am unwilling to engage in such judicial legislating when our statutes are clear and our own precedent is otherwise binding.

I

The facts in this case are not in dispute. On March 3, 1980, Larry and Shirley Watts, then spouses, executed a promissory note (the Lusher note) and deed of trust on real property in favor of Larry Watts’ mother, Marjorie Lusher. On October 7, 1981, Shirley and Larry Watts executed a second note and deed of trust on that same property in favor of Cache National Bank (CNB). On September 28, 1982, Shirley Watts conveyed all of her interest in the Greeley property to Larry Watts; soon afterward, Shirley and Larry Watts were divorced. Notably, although Shirley conveyed all of her interest in the property to her former spouse, Larry did not assume Shirley’s obligations on the Lusher note.

The deed of trust securing the note stated that “if [Shirley and Larry Watts’] successor in interest (i.e., Larry Watts) has éxecuted a written assumption agreement accepted in writing by Lender (Lusher), the Lender shall release [both Shirley and Larry Watts] from all obligations under the Deed of Trust and the Note.” Larry Watts did not execute a written assumption agreement accepted in writing by Lusher; hence Lusher did not release Larry and Shirley Watts from their obligations under the Lusher note and deed of trust, and as such, both continued to be bound by the obligations contained in the note and deed of trust.

Each year for eight years thereafter, Larry Watts acknowledged and renewed his original obligation on the Lusher note and altered the terms and conditions of his obligation on successive due dates14; Shirley *960Watts, however, did not renew her obligation. Eventually, Lusher foreclosed on the Greeley property, received a deed on the property and properly recorded. Later, CNB foreclosed its interest in the property, received a deed thereon and recorded. CNB then initiated an action in the district court to quiet title to Shirley’s one-half interest in the property. The trial court granted CNB’s motion on the ground that Larry’s independent renewal of his obligation on the Lusher note had no legal force as to Shirley’s obligation on the note. As the analysis below reveals, the trial court’s ruling is entirely consistent with the statutory and decisional law in this state.

II

Section 13-80-114, 6A C.R.S. (1987), a provision under the broader statutory scheme dealing with limitations on personal actions, states as follows:

Promise by one of parties in joint interest. No joint debtor, obligor, or his personal representative or successor shall lose the benefit of the provisions of this article so as to be chargeable by reason only of any acknowledgment, promise, or payment made by any other of them.

The language of this section could not be more plainly crafted. An acknowledgment, promise or payment made by one co-maker of a promissory note operates only to avoid the bar of the statute of limitations as to that comaker, and not as to the other co-maker. To demonstrate the meaning of this provision even further, we have well-settled case law on which to rely. For greater than a century, appellate courts in this state have construed section 13-80-114, insofar as the statute requires interpretation, to mean that acknowledgments, new promises or payments of one endorser of a promissory note operate only to avoid the bar of the limitations statute as to himself or herself and not as to any joint maker. See Coulter v. Bank of Clear Creek County, 18 Colo.App. 444, 72 P. 602 (1903); Torbit v. Heath, 11 Colo.App. 492, 53 P. 615 (1898). There simply is no other manner in which to interpret section 13-80-114.

Furthermore, this statute comports with the majority rule of law in sister jurisdictions:

There seems to be no dissent from the proposition that where the promises of ob-ligors are several, no admission or promise by one can remove the bar against the other in the absence of any authorization so to act.
[[Image here]]
... [T]he courts of many jurisdictions, particularly in the later cases, have repudiated the rule that an acknowledgement or promise by one joint debtor tolls the statute of limitations as regards another joint debtor, in favor of the view that a new promise or acknowledgment by one of several joint obligors, although sufficient to bind the promisor personally, will not toll the statute of limitations against his co-obligors, or revive, as against them a cause of action already barred by the statute. These cases proceed upon the theory that the statute affords protection to each of two or more persons jointly bound, that to render an acknowledgment by one available against another, there must be authority to act ... and that there is nothing in the relation of joint debtors from which such an agency can be inferred.

51 Am.Jur.2d Limitation of Actions § 354 (1970) (emphasis added); see also id. § 350 (“the statute of limitations will not be extended as to one spouse by the giving of a note in payment of such an indebtedness, or an acknowledgment thereof, by the other spouse”).

As I indicated above, although Larry Watts acknowledged his continuing obligation on the promissory note, Shirley Watts *961did not. Hence, Larry’s acknowledgment only tolled the statute of limitations as to his obligation under the Lusher note, such that section 13-80-114 compels the finding that Shirley defaulted on her obligation under the note on March 3,1982. Under the applicable statute of limitations allowing a six-year period in which to bring a claim,15 Lusher’s right to assert a claim against Shirley for her default on the note became time-barred on March 3, 1988. Again, the universal rationale for this principle is that “there is nothing in the relation of joint debtors from which an agency can be inferred.”

The final and determinative statutory provision that applies here is section 38-39-207, 16A C.R.S. (1993 Supp.). That provision mandates that:

The lien created by any instrument shall be extinguished, regardless of any other provision in this article to the contrary, at the same time that the right to commence a swit to enforce payment of the indebtedness or performance of the obligation secured by the lien is barred by any statute of limitation of this state.

(emphasis added). Applying the language of this provision to the facts of this case, it is indisputable that “the lien created by [the Lusher note was] extinguished at the same time that [Lusher’s] right to commence a suit to enforce payment of [Shirley’s] indebtedness ... secured by the lien [was] barred by [the relevant] statute of limitation....” See § 38-39-207, 16A C.R.S. (1993 Supp.); see also Birkby v. Wilson, 92 Colo. 281, 285, 19 P.2d 490, 492 (1933) (construing the predecessor statute to mean that unless an obligor keeps his or her indebtedness alive, his or her lien is extinguished when the right to commence a suit to enforce payment of the indebtedness secured by the lien is barred by any statute of limitation of this state).

Thus, the issue before us and upon which we granted certiorari is easily decided. Shirley Watts did not act to keep her indebtedness alive and therefore, by the unambiguous terms set out by section 38-39-207, and under our own construction of these words, at the point in time when Lusher’s right to enforce Shirley’s obligations on the note became time-barred, the lien that was created by Shirley’s separate obligation on the note was extinguished.16

Ill

In its order of November 14,1991, the trial court found that the “Quit Claim Deed did not contain language whereby the indebtedness to Marjorie Lusher was assumed by Larry Watts.” Implicit in this finding is the conclusion that the obligations of Shirley Watts and Larry Watts under the Lusher Note were both joint and several and neither guaranteed or otherwise undertook to secure the payment of the other. Like the majority, I too can find no language in the Lusher note or the March 3, 1980 deed of trust sufficient to conclude that Shirley Watts’ undivided one-half interest secured more than her own payment obligations under the Lusher note. Although Marjorie Lusher secured the promises of Shirley Watts and Larry Watts, jointly and severally, to pay “the principal of and interest on the indebtedness evidenced by *962the note,” she did not obtain from Shirley Watts an interest in Shirley’s undivided one-half interest in the Greeley property to secure any and all present and future obligations or payments owed by Larry Watts under the original Lusher note.

It remains a mystery to me as to how the majority can conclude that “[t]he provisions of the note and deed of trust ... encumbered] the interests of each to secure the obligations of both.” Maj. op. at 958. I do not question the majority’s conclusion, as set forth in footnote 10, that Shirley Watts as a co-maker can effectively encumber her own property to secure an obligation of another person such as Larry Watts. Maj. op. at 956, n.10. However, other than Shirley Watts’ marital relationship with Larry Watts, which should be of no effect alone, I am at a loss to divine a relationship or act by Shirley Watts that gives rise to such an obligation and the majority has not revealed sufficient language in the note or deed of trust to reach such a result.

The majority is concerned that the “scope of the obligations secured by the lien” as created by the note and deed of trust will be defeated if the lender, here Marjorie Lusher, cannot foreclose on the entire Greeley property until all the obligations secured by the deed of trust have been satisfied. This approach to resolving the present case gives fresh meaning to the concept of unbridled judicial legislation. The General Assembly has previously determined the public policy of Colorado. By its enactment of section 13-80-113, the General Assembly made a choice it was entitled to make regarding the extin-guishment of claims. The wisdom of its decision is brought out by the facts of this case.

The statutory scheme, when applied as written, is not unfair to Lusher. She had six years to prevent the “scope of the obligations secured by the lien” from being defeated. Marjorie Lusher simply elected not to act. However, here, the will of the majority will excuse her omission, despite statutory provisions to the contrary.

IV

When the General Assembly enacts legislation based upon a reasoned public policy decision, it is not our role to rewrite those laws. Rather, we are to apply statutes as they are written, and leave any revisions to the legislature. I wish to make clear that this is not a case where “the legislature has voiced its wishes in muted strains and left it to the court to discern the theme.” Rosado v. Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970). The relevant statutory language is unambiguous. It is our sole responsibility to apply the clear language to the facts of this case, not to ac-croach to this court the role of the legislature. Because I would reverse the judgment of the court of appeals in reliance upon the clear language of controlling statutes and our precedent, I respectfully dissent.

. The original amount of the Lusher note obligation to which each co-maker was jointly and severally liable was $60,700, secured by real estate. On March 3, 1982, Lusher advanced an additional $23,400 to Larry Watts "to pay off business losses owed to private and commercial creditors.” In consideration of that advance and amounts Larry owed under the Lusher note, Larry Watts issued a new note, dated March 3, 1982, for a new principal amount due in one year of $98,668. Unlike the original Lusher note, Larry Watts was the only maker and payor under the March 3, 1982, note. On March 3, 1983, the amount due under the March 3, 1982, note was affirmed by Larry Watts through a subsequent document denominated “Extension of Original Note Secured by Deed of Trust” in the principal amount of $118,401.60 with an interest rate of 16% annually. One year later, on March 3, 1984, Larry Watts issued another note. That note included an "additional advance to open restaurant” in the amount of $38,500, plus the unpaid amount of $137,345.86 with an interest *960rate of 19% per annum. As of March 3, 1985, based solely on actions by Larry Watts, the principal balance due was $209,256.57, plus interest, more than three times the original obligation. On March 3, 1985, Larry Watts issued the final note in the principal amount of $209,256.57 due and payable, plus interest at 10%, on March 3, 1990. Although the notes after March 3, 1982, are denominated as "extensions” of existing notes, it is not necessary to determine whether these notes, with new consideration flowing to Larry Watts, constitute an extension of the original Lusher note.

. Section 13-80-103.5, 6A C.R.S. (1986) is the limitations statute that applies to actions dealing with the enforcement of promissory notes. That section, in part provides as follows:

The following actions shall be commenced within six years after the cause of action accrues and not thereafter:
(a) ... all actions for the enforcement of rights set forth in any instrument securing the payment of ... any debt, and all actions ... to recover the possession of personal property encumbered under any instrument securing any debt....

. When Shirley conveyed all her property to Larry, the lien securing her promise to Lusher remained intact and was never assigned to Larry. Whiteside v. Rocky Mtn. Fuel Co., 101 F.2d 765 (10th Cir.), cert. denied, 307 U.S. 640, 59 S.Ct. 1038, 83 L.Ed. 1521 (1939) (holding that liens on conveyed property are wholly unaffected by the conveyance). Thus, that Shirley conveyed her interest in the Greeley property is not a material fact.

Here, a general review of the substantive law may assist in the understanding of this case. In its broadest sense, a lien is a legal claim as security for payment of some debt. The lien is so far an incident of the indebtedness that it cannot be assigned unless the debt which it secures is transferred. Lewis v. Booth, 3 Cal.2d 345, 44 P.2d 560 (1935). Because Shirley's indebtedness was not transferred, the lien securing her debt was likewise not transferred.