American Bankers Life Assurance Co. v. United States

12 Cl. Ct. 166, 1987 U.S. Claims LEXIS 64
CourtUnited States Court of Claims
DecidedApril 10, 1987
DocketNo. 562-85C
StatusPublished
Cited by7 cases

This text of 12 Cl. Ct. 166 (American Bankers Life Assurance Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Bankers Life Assurance Co. v. United States, 12 Cl. Ct. 166, 1987 U.S. Claims LEXIS 64 (cc 1987).

Opinion

OPINION

YOCK, Judge:

This action is before the Court on cross-motions for summary judgment regarding the Government’s liability under a maritime guarantee agreement. For the reasons discussed herein, the defendant’s motion is granted, the plaintiff’s motion is denied, and the complaint is to be dismissed.

Facts

On July 24, 1979, the Secretary of Commerce, acting through the National Marine Fisheries Service (NMFS) of the United States Department of Commerce, entered [168]*168into an agreement to guarantee a loan made by Bache, Halsy, Stuart, Shields, Inc. (Bache), to Darce, Inc. (Darce), to finance the construction of a fishing vessel, The Ramona. The guarantee contract was made pursuant to the authority contained in Title XI of the Merchant Marine Act of 1936, 46 U.S.C. § 1271 et. seq. (1936, as amended). On July 26, 1979, Bache assigned its guaranteed note to the plaintiff, (American Bankers Life Assurance Company). On the date of the assignment, the balance of the guaranteed promissory note was $591,400. Pursuant to the terms of the promissory note, Darce was to make monthly payments directly to American Bankers for a period of twenty years.

Some four years later, in 1983, Darce began to run into financial difficulties and failed to make several of its monthly payments when they became due. Specifically, Darce missed payment No. 44 which was due on March 24, 1983, but was not paid until June 29, 1983—ninety-four days late. Payments numbered 51, 52 and 53, due in the months of October, November, and December of 1983, were also missed and not paid until February 9, April 30, and June 22, 1984, respectively. Payment No. 51 was 106 days late payment No. 52 was 156 days late, and payment No. 53 was 148 days late.

The NMFS first became aware of Darce’s late payments after it requested a loan status report from the plaintiff on May 31, 1984. By letter dated July 26, 1984, the Southeast Region of the NMFS notified the plaintiff that pursuant to the termination clause contained in the guarantee agreement, the entire loan guarantee had been terminated. The letter in pertinent part stated:

This responds to your Schedule of Direct Reduction Loan ledger which was received by this office on July 10, 1984.
As you recall, Mr. Brett Brunner from this office contacted you on May 31,1984 reference this account and in order to establish not only the status of the loan balance but the status of payments received by American Bankers Insurance Group. According to your communication with Mr. Brunner on that date, it appeared that there may be a problem associated with the government guaranteed note number 5220 associated with this Title XI financing.
Under the guarantee agreement, the language in this instrument states that in the event of default, which has continued for 30 days in any payment, by the payor, in this case Darce, Inc., of any principle [sic] or interest due under the guaranteed note, the obligee shall have the right to demand in writing no later than 60 days from th date of a payment default, payment by the guarantor. The obligee’s right to demand payment under the guarantee agreement, however, expires 90 days from the due date for the payment which is in default. In reviewing your accounting ledger, it appears that payment number 44, which was due on March 24, 1983, was not received by your office and posted until June 28, 1983. Therefore, this payment appears to be 94 days past due.
Payment number 51, which was due on October 24, 1983, was not received and posted until February 9, 1984 and this payment appears to be 106 days past due.
Payment number 52, which was due and payable on November 24, 1983, was not received and posted until April 30, 1984 and this payment appears to be 156 days past due.
Lastly, payment number 53, which was due and payable on December 24, 1983, was not received and posted until June 22, 1984 and was, therefore, 148 days past due.
Under the circumstances, it appears, according to your accounting ledger, that American Bankers Insurance Group lost its guarantee when payment number 44 was paid and receipted 94 days past the due date.
It appears that the present principle [sic] balance reference this account is $539,712. By copy of this letter, we are advising the Central Office in Washington, D.C. of the Region’s findings associated with this matter.

[169]*169By letter of August 14, 1984, the central office of the NMFS in Washington, D.C., concurred with the NMFS regional office’s findings and determinations and advised the plaintiff:

In a letter dated July 26, 1984, Tom Allen of our Southeast Regional Office informed you that American Bankers Insurance Group had lost its Federal loan guarantee on Case No. OG-G-446, Darce, Inc.
The Guarantee Agreement, dated July 24, 1979, states specifically, “The obli-gee’s right to demand payment under the guarantee expires 90 days from the due date for the payment which is in default.” The payments due March 24, October 24, November 24, and December 24, 1983, were not paid within 90 days of the due date, and the obligee, American Bankers Insurance Group, did not demand payment under the terms of its guarantee within this period.
We concur with the decision of our Southeast Regional Office that American Bankers Insurance Group has lost its guarantee on this case. If you will provide us with a hold harmless agreement, we will assign our collateral documents to American Bankers Insurance Group. A sample hold harmless agreement is enclosed for your review.

The record in this case reveals no direct response by the plaintiff to these letters.

Meanwhile, Darce failed to pay the installment due on April 24, 1984, and failed to make any installment payments after that date. Nevertheless, on April 2, 1985, almost a year after Darce stopped making any payments on the promissory note, the plaintiff wrote a letter to the NMFS advising the Service that Darce was in default on its payments and demanding full payment of the balance of the note under its contract of guarantee with the NMFS. The letter stated:

As you know, American Bankers Life Assurance Company of Florida (“American Bankers”) is the holder of the referenced Note, executed by Darce, Inc. and guaranteed by the United States of America under a written Guarantee and Guarantee Agreement. Pursuant to the terms of said Note, Guarantee, and Guarantee Agreement, you are hereby notified that Darce, Inc. has failed to make the payment due on January 24, 1985, and that said default has continued for more than thirty days. American Bankers has therefore exercised its option to accelerate the balance of the Note, consisting of the sum of $524,503., which is the balance due and owing immediately prior to January 24, 1985. Enclosed please find a copy of our notification letter to Darce, Inc., advising Darce, Inc. of the acceleration and demanding payment of said sum.
Pursuant to the terms of the Guarantee and Guarantee Agreement, demand is hereby made upon the United States of America, through the Secretary of Commerce, for payment of the guaranteed amount of $524,503.

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Bluebook (online)
12 Cl. Ct. 166, 1987 U.S. Claims LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-bankers-life-assurance-co-v-united-states-cc-1987.