Farm Credit Bank of Omaha v. Maberry

498 N.W.2d 210, 1993 S.D. LEXIS 28
CourtSouth Dakota Supreme Court
DecidedMarch 31, 1993
DocketNos. 17840, 17905
StatusPublished
Cited by1 cases

This text of 498 N.W.2d 210 (Farm Credit Bank of Omaha v. Maberry) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farm Credit Bank of Omaha v. Maberry, 498 N.W.2d 210, 1993 S.D. LEXIS 28 (S.D. 1993).

Opinion

SABERS, Justice.

Farm Credit Bank of Omaha (FCBO) foreclosed against members on a real estate mortgage. Two members appeal. We affirm.

FACTS

On May 28, 1981, Daniel B. Garber, Bennie Garber, and Gary Garber executed and delivered to FCBO a promissory note in the amount of $576,000.00. As security for the loan, Daniel Garber, Esperanza Garber, Bennie Garber, Gary Garber, and Gayle Garber (Garbers) executed a mortgage. According to the terms of the mortgage, the total debt became due immediately upon default. Garbers failed to make their [211]*211⅛986 loan payment. Apparently, Gary and Gayle Garber (Defendants) farmed the tnortgaged property. They filed a Chapter 12 bankruptcy petition on December 29, ⅜986.

Defendants and FCBO stipulated to the value of the subject property- as $165,-000,00 in the bankruptcy proceedings. Pursuant to the order approving the stipulation between the parties, FCBO’s mortgage continued to exist until full payment of the $165,000, plus interest. In the event of a default, (after ten days notice to Defendants and their subsequent failure to cure that default,) the automatic stay would be lifted.

Defendants failed to make their December, 1990 payment, a default under the terms of the order. After providing notice, FCBO was granted relief from the automatic stay. According to the Order Granting Relief, FCBO was allowed to “take any action necessary to collect the entire amount of the indebtedness due and owing ... pursuant to the terms of the note and mortgage[.]” Defendants’ motion to have the order reconsidered was denied and they did not appeal the order.

When a final demand for payment was made and Defendants failed to make the payment, FCBO declared the entire amount of the note due. FCBO filed a complaint, requesting entry of a judgment for the amount due and owing under the note and mortgage, a decree of foreclosure and special execution. Defendants

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Related

FARM CREDIT BANK OF OMAHA v. Maberry
498 N.W.2d 210 (South Dakota Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
498 N.W.2d 210, 1993 S.D. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farm-credit-bank-of-omaha-v-maberry-sd-1993.