Federal Deposit Insurance Corp. v. Yates

719 S.W.2d 481, 2 U.C.C. Rep. Serv. 2d (West) 1398, 1986 Mo. App. LEXIS 4907
CourtMissouri Court of Appeals
DecidedNovember 4, 1986
DocketNo. WD 37567
StatusPublished
Cited by2 cases

This text of 719 S.W.2d 481 (Federal Deposit Insurance Corp. v. Yates) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Federal Deposit Insurance Corp. v. Yates, 719 S.W.2d 481, 2 U.C.C. Rep. Serv. 2d (West) 1398, 1986 Mo. App. LEXIS 4907 (Mo. Ct. App. 1986).

Opinion

DIXON, Judge.

Defendant Edith Holloway appeals the trial court’s grant of summary judgment in favor of plaintiff Bank in the Bank’s re-plevin action to gain possession of certain farm machinery that had been used as collateral. The plaintiff, Albany State Bank, has become insolvent since the institution of this lawsuit. The FDIC is the substituted plaintiff on appeal.

Holloway asserts that the trial court erred in granting summary judgment because the Bank failed to show by unassailable proof that the defendants Yates defaulted on the loan, because Bank failed to first demand the surrender of the collateral as required by the security agreement, and because Bank failed to show its interest as creditor was superior to Holloway’s ownership interest.

Howard and Margaret Yates are husband and wife. Howard is the son of defendant-appellant Holloway. The Yateses purchased a farm from Holloway and her husband, now deceased, in December 1978. An unsecured promissory note was executed in favor of the Holloways but by June 1983, only $4000 had been paid on the note.

In December 1982, the Yateses signed a promissory note in favor of Albany State Bank. Both also signed a security agreement giving Bank a security interest in specifically described farm goods and machinery. Both understood that the agreement was to give the Bank a lien on the included items. The Bank had filed a financing statement in the county of the Yateses’ residence which covered “all livestock and machinery and feed and grain on hand.” Only Howard Yates was named as the debtor and only Howard Yates signed the financing statement. Margaret Yates had signed other financing statements but she did not sign the financing statement covering “machinery” though she was aware that her husband signed it and he did it with her consent. The machinery itemized on the list that was attached to the security agreement, except for three items, was claimed jointly by Howard and Margaret Yates.

Due to their February 1983 financial situation, the Yateses began to consider how they could provide Holloway with some security on the promissory note they had executed in her favor. After consulting an attorney, they concluded that the Bank [483]*483might not have a “legal lien” on the machinery because of the “U.C.C. filing.” Howard Yates then came up with the idea of giving his mother Edith Holloway a bill of sale on the machinery to pay the Yates-es’ note. In June 1983 Holloway received a “bill of sale” in exchange for the promissory note. The Yateses took the note but it was never marked paid. The Yateses retained possession of the machinery, used it, paid taxes on it and included it on their depreciation schedules.

Neither the Yateses nor Holloway talked with anyone at the Bank about the transfer of the machinery prior to Holloway’s receipt of the bill of sale, and Holloway did nothing to check on security interests in the machinery prior to taking the bill of sale.

The promissory note from the Yateses to the bank matured in December 1983. The Yateses defaulted on the note and the Bank filed its petition in replevin against the Yateses and Edith Holloway. Holloway counter-claimed for attorney’s fees. The Bank filed a motion for summary judgment, attaching an affidavit in support of replevin, exhibits and the deposition testimonies of the three defendants. The trial court dismissed Holloway’s counterclaim and granted the Bank summary judgment. Holloway appeals from the grant of summary judgment.

In reviewing a grant of summary judgment, the record is taken in a light most favorable to the party against whom judgment was granted, and the burden is on the moving party to show by unassailable proof that there is no genuine issue of fact to be tried. Miller v. Kruetz, 643 S.W.2d 310, 312 (Mo.App.1982). A genuine issue of fact exists if there is the slightest doubt about the facts. Id. The whole record is reviewed, however, and the trial court’s judgment will not be reversed if it is correct even if it was made on an incorrect basis. Colbert v. Mutual Benefit Life Insurance Co., 608 S.W.2d 119,120 (Mo.App.1980).

In a single point relied on, Holloway claims summary judgment was erroneously granted because the movant Bank failed to show by unassailable proof that it “had the requisite entitlement to the property required for replevin.” Holloway raises three areas where she believes the Bank’s proof was deficient.

First, she claims the Bank did not sufficiently show a default on the promissory note by the Yateses, but instead only stated in conclusory language in its affidavit that a default occurred. Holloway relies on State ex rel. Tallen v. Marsh, 633 S.W.2d 458 (Mo.App.1982), in which the debtor sought a writ of prohibition in a prejudgment seizure action. Id. at 459. The court held that an affidavit lacking sufficient evidentiary facts robbed the trial court of jurisdiction to make a delivery order. Id. at 461.

In Tallen, the affidavit stated that defendant had failed to make required contract payments, therefore, plaintiff was entitled to possession of certain described property. The affidavit did not describe the contract, who the parties were, what payments were required and not made, or whether the payments were secured by a lien on the property sought. Id. Nor was any documentation attached to the affidavit. Id. The case at bar is readily distinguishable from Tallen. The affidavit in this case incorporates the petition in replev-in and “all exhibits,” attached thereto. The petition set forth more details than the affidavit concerning the terms of the promissory note and alleged that defendants Yates “are now in default for nonpayment.” Included in the exhibits were copies of the promissory note and security agreement. The promissory note included a notation showing an outstanding balance and indicating that the last payment was made in May 1983. The affidavit was sufficient under Rule 74.04(e) to show the default for nonpayment by the Yateses.

The burden then shifted to the defendants to show that no default occurred if that was their contention. Facts stated in affidavits filed in connection with a motion for summary judgment stand admitted [484]*484when the party opposing the summary judgment fails to file a verified denial of those facts. Goth v. Norman, 693 S.W.2d 176, 176, 178 (Mo.App.1985). Holloway did not offer counter-affidavits to Bank’s motion for summary judgment nor did she even file suggestions in opposition to the motion. The default was admitted and properly considered by the trial court.

Holloway next complains that the Bank was not entitled to possession of the collateral under the security agreement “until [Bank] made demand upon Defendants Yates to ‘assemble the collateral and make it available to Lender at a place designated by Lender and reasonably convenient to both,’ ” and that the record is totally devoid of evidence of the Bank’s compliance with that condition. Holloway cites no authority for her contention other than Tallen, supra, which she cites for the general proposition that the affidavit is insufficient.

The Bank did not have to plead or show such a demand because no such demand was required by the security agreement.

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719 S.W.2d 481, 2 U.C.C. Rep. Serv. 2d (West) 1398, 1986 Mo. App. LEXIS 4907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-corp-v-yates-moctapp-1986.