Falcone v. Prosperity Bank & Trust (In re Falcone)

146 B.R. 671, 1992 Bankr. LEXIS 1753
CourtDistrict Court, E.D. Virginia
DecidedJune 23, 1992
DocketBankruptcy No. 91-10685-T; Adv. No. 91-1318-T
StatusPublished
Cited by1 cases

This text of 146 B.R. 671 (Falcone v. Prosperity Bank & Trust (In re Falcone)) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falcone v. Prosperity Bank & Trust (In re Falcone), 146 B.R. 671, 1992 Bankr. LEXIS 1753 (E.D. Va. 1992).

Opinion

MEMORANDUM OPINION

DOUGLAS 0. TICE, Jr., Bankruptcy Judge.

The debtors, Gary and Jolene Falcone, filed a complaint under Bankruptcy Code § 506, to determine the extent and validity of a lien held by Prosperity Bank, and under § 362(a)(7), alleging that the bank made a setoff in violation of the automatic stay. The debtors filed a motion for summary judgment on their complaint. A hearing was held on April 22, 1992, and the issues were taken under advisement. Subsequently, the bank filed a summary judgment motion.

' Debtors’ counsel has argued that even if their summary judgment motion is denied, a similar motion by the bank should not be granted because at trial debtors intend to present evidence of other defenses to Prosperity’s claim.

For the reasons given in this memorandum opinion, both parties’ motions for summary judgment on the issue of the lien determination will be denied, and the debtors’ motion for summary judgment on the [673]*673issue of violation of the automatic stay will be granted.

Findings of Fact

The debtors jointly filed a voluntary chapter 7 petition on February 22, 1991. Mr. Falcone is a lawyer, a bank director, and an experienced real estate investor.

Prior to their filing, the debtors had borrowed the sum of $50,000.00 from Prosperity Bank evidenced by their credit line note dated November 25, 1986, which was secured by a second deed of trust on their residence. The initial deed of trust securing the note was executed December 10, 1986. Three deeds of trust executed by the debtors were sequentially substituted for the original deed, and each substitute deed was duly recorded.

Prosperity’s deed of trust (original and each substitute) is a four page standard form known as a “Fannie Mae/Freddie Mac UNIFORM INSTRUMENT; form 3047”. On the first page the document states: “This Security Instrument secures to Lender: ... (c) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.”

The note secured by Prosperity’s deed of trust is a two page document issued by Prosperity Bank and signed by the debtors. On the first page it states:

ADDITIONAL COLLATERAL: This note is secured by the following described collateral security in addition to the real estate described on the above referenced Credit Line Deed of Trust: 2nd Deed of Trust on residence ... The Additional Collateral secures all future advances made under this Note ... (T)he Additional Collateral also secures any other liability of any Party ... to the Bank whether absolute or contingent, whether joint or several, which is now due or which hereafter becomes due ... or which hereinafter may be contracted, including future advances.

(emphasis added).

Also prior to their bankruptcy filing, the debtors executed an unsecured guaranty on a $100,000.00 loan by Prosperity Bank to the law firm Falcone & Rosenfeld, LTD. The bank obtained judgment against the law firm after it defaulted on the note.

Just prior to their filing bankruptcy, debtors arranged for a new loan from Dominion Bank for the purpose of satisfying the Prosperity second deed of trust on their residence. Five days postpetition Dominion Bank, on behalf of the debtors, issued a check for the sum of principal and interest owing on the credit line note to Prosperity Bank. Prosperity Bank accepted the payment of $50,788.10 from Dominion Bank on February 27, 1991, and applied the funds to the balance owed on the credit line note. Additionally, Prosperity, without seeking bankruptcy court approval, then transferred $50,000.00 of the debtors’ guaranty liability on the $100,000.00 Falcone & Ro-senfeld note to the credit line debt. Thus by Prosperity’s accounting, even though the debtors believed they had paid the secured credit line note in full, the debtors still owed $50,000.00 under the credit line note and $50,000.00 under the guaranty.

When it made payment of the debtors’ loan proceeds to Prosperity, Dominion Bank demanded a release of the deed of trust. However, Prosperity Bank refused to release the deed of trust, claiming that it retained its interest in the deed of trust because other secured liabilities of the debtors remained outstanding.

Discussion and Conclusions of Law

A motion for summary judgment is governed by Bankruptcy Rule 7056, which incorporates Fed.R.Civ.P. 56 in adversary proceedings. Under this rule a court may consider pleadings, answers to interrogatories, admissions, and any affidavits in order to determine if there is any genuine issue as to any material fact in the proceeding before the court. Fed.R.Civ.P. 56(c). If there is not material issue of fact to be established at a trial and the movant is entitled to judgment as a matter of law, then the court may grant summary judgment.

In this proceeding the debtors seek summary judgment on two issues. (1) That the credit line deed of trust executed by the [674]*674debtors granted to the bank a security interest in the debtors’ residence only for the sum borrowed on the credit line note. (2) That Prosperity violated the automatic stay by effectively setting off the payment made on the credit line note against the debtors’ guaranty debt (that is, by transferring $50,000.00 of the guaranty debt to the credit line account). Prosperity’s defense is that the deed of trust securing the credit line note also secured the guaranty through operation of cross-collateral terms in the loan documents.

The issue here is novel. To summarize the court’s findings of fact, the debtors signed a promissory note for a credit line loan in the original amount of $50,000.00. This note was to be specifically secured by a second deed of trust on the debtors’ residence. However, the loan documents contained additional language which the court must interpret. The note stated not only that it was secured by a second deed of trust on the residence but also that this collateral would secure any other debt of the borrowers to the bank. The deed of trust form stated that it secured not only debtors’ payment of the note but also the borrowers’ performance of “covenants and agreements under this Security Instrument and the Note.” Prosperity argues that this circuitous language effectively served to give it a second deed of trust security in the residence for the debtors’ separate obligation under their guaranty of a defaulted note in the amount of $100,000.00.

A deed of trust is in the nature of a contract and barring a showing of a contrary intent of the parties will be construed according to its terms. VA.CODE ANN. § 55-59; see In re Liberty Construction & Development Corporation, 106 B.R. 458, 461 (Bankr.E.D.Va.1989). However, in some circumstances a court may look beyond the terms contained within the loan documents for indicia of the parties’ intent. See Seattle-First National Bank v. Continental Illinois National Bank and Trust, No. 84 C 1416, slip op. at 17, 1986 WL 5685 (N.D.Ill. May 2, 1986) (looking beyond the language of the note, which used a banker’s standard form, revealed that the intent of the parties differed from the general printed provisions).

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Bluebook (online)
146 B.R. 671, 1992 Bankr. LEXIS 1753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falcone-v-prosperity-bank-trust-in-re-falcone-vaed-1992.