Hill v. Bank of Falkner (In re Hill)

120 B.R. 56, 1990 Bankr. LEXIS 2187
United States Bankruptcy Court, N.D. Mississippi·Decided March 16, 1990·No. Bankruptcy No. 88-0405-BKC-WSE; Adv. No. 89-1036·Published

Opinion

OPINION

DAVID W. HOUSTON, III, Bankruptcy Judge.

On consideration of the motion to dismiss or, in the alternative for summary judgment, filed by the defendants, Bank of Falkner, and James McMillin, President of the Bank of Falkner; response to said motion having been filed by the plaintiff, Kerry Whitten Hill; and the Court having reviewed said motion, response, supporting exhibits and affidavits, hereby finds and adjudicates as follows, to-wit:

I.

This Court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 157(b). This is a non-core adversary proceeding; however, all of the parties have consented to this Court entering a final order in this proceeding pursuant to the provisions of 28 U.S.C. § 157(c)(2).

II.

In late 1979 and early 1980, the plaintiff negotiated with the bank, through its representative, McMillin, for a loan in the amount of $55,000.00. Proceeds from this loan were to be used by the plaintiff for business operating expenses.

Around January 3, 1980, the plaintiff allegedly signed a blank promissory note in favor of the bank and received a deposit slip in the amount of $5,000.00, evidencing an initial advance on the loan. (The Court recognizes the legal principle that anyone who signs a document in blank does so at his or her peril.)

A dispute arose between the plaintiff and the bank as to the terms of the loan. The plaintiff contends that the loan required interest at the rate of 10% per annum, no monthly payments, and was due in full one year from the loan date. The bank contends that the promissory note, # 3065, executed in connection with the loan, was in the sum of $65,000.00, bore interest at the rate of 16% per annum, and was payable in 48 equal monthly installments of $2,000.00, beginning April 1, 1980. The parties also vigorously dispute whether the plaintiff actually defaulted under the terms of the loan.

The plaintiff contends that sometime before May 1, 1980, McMillin informed him that $15,000.00 had been transferred from his bank account and applied to the note balance. This transfer was allegedly made upon the insistence and instruction of an F.D.I.C. agent. The plaintiff asserts that this transfer was made without his consent or knowledge in violation of § 75-4-401, Miss.Code Ann., and, consequently, caused an overdraft in his account. In connection therewith, he seeks damages pursuant to § 75-4-402, Miss.Code Ann., because his checks were wrongfully dishonored.

The bank filed suit against the plaintiff in the Circuit Court of Tippah County, Mississippi, on August 15, 1980, under Cause No. 2018, seeking collection of note # 3065. A lis pendens notice was contemporaneously filed with the Tippah County Chancery Clerk. The bank’s attorney initiated an additional suit against the plaintiff for at[58]*58torney’s fees incurred as a result of his filing Cause No. 2018, and filed a second lis pendens notice.

The lis pendens notices and the lawsuits were dismissed on August 28, 1980, approximately two weeks later, when the plaintiff signed a second promissory note, # 4012, in favor of the bank in the sum of $73,417.32. This note, which apparently was in settlement of the pending litigation, renewed note # 3065, and covered an overdraft of $8,417.82, caused by the aforementioned $15,000.00 transfer from the plaintiff’s account. The plaintiff now contends that this renewal note was executed “..., under duress and coercion perpetrated by the ... defendant bank and its agents and employees ...”

On January 21, 1983, the bank sued the plaintiff in the Tippah County Chancery Court, Cause No. 11,447, seeking specific performance of note # 4012. In response, the plaintiff filed an answer, amended answer, affirmative defenses, and a counterclaim against the bank alleging fraud. In substance, the counterclaim charged that the bank unlawfully altered the terms of note # 3065 and the description of the collateral which secured the note, all in violation of § 75-3-406 and § 75-3-407, Miss. Code Ann. This case has remained pending for over seven years.

On March 28, 1983, the plaintiff filed a cause of action against the bank, F.D.I.C., and McMillin in the United States District Court for the Northern District of Mississippi, Cause No. 83-58-LS. This case included allegations that the bank had violated the Federal Truth in Lending Act and various state banking statutes in connection with the loans evidenced by notes # 3065 and # 4012. This case was dismissed on August 17, 1984, and no appeal or other post-judgment relief was sought.

On February 19, 1988, the plaintiff filed another complaint against the bank and McMillin in the United States District Court for the Northern District of Mississippi alleging, inter alia: (1) that they had violated the Federal Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961-1968), (2) that they had deprived the plaintiff of certain rights, privileges and immunities guaranteed under the United States Constitution in violation of 42 U.S.C. § 1983, and (3) that they had violated § 75-4-401, § 75-4-402, § 75-3-406 and § 75-3-407, Miss.Code Ann., all in connection with their activities related to the plaintiff’s loans. On March 12, 1988, the plaintiff filed his voluntary Chapter 7 bankruptcy petition. Almost one year later, the second District Court case, which had been assigned Cause No. 88-23-D-D, was referred to this Court for adjudication.

The bank and McMillin filed a joint motion to dismiss or, in the alternative, for summary judgment. This motion alleges that the various causes of action set forth in the plaintiff’s complaint are barred by the applicable statutes of limitations.

III.

To properly determine if the instant complaint was timely filed, the Court must first ascertain when the plaintiff’s alleged causes of action accrued. The plaintiff argues that he first discovered on October 1, 1982 that note # 3065 had been altered. Thus, he contends that all applicable statutes of limitations should begin to run from that date. This issue can be easily resolved through a review of the discovery materials furnished to the Court and the affidavits submitted by the defendants.

In a deposition taken June 10, 1983, the plaintiff admits that he received a copy of note # 3065 sometime during August, 1980.1

[59]*59The affidavits, attached to the defendants’ motion, reveal that the plaintiff should have received copies of note # 3065 on at least three occasions, to-wit:

1. August 5, 1980; a letter was mailed to the plaintiff by R.S. Hardin which had enclosed a lis pendens notice and a copy of note # 3065 attached thereto, all of which was received by the plaintiff on August 16, 1980, as indicated by a certificate for receipt of certified mail. (Affidavit of Wendell H. Trapp, Jr., Exhibit “A”.)
2. August 18, 1980; a copy of note # 3065 was attached as an exhibit to a declaration filed in the Circuit Court of Tippah County, Mississippi, in Cause No. 2018, in which the plaintiff was served with process.

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Hill v. Bank of Falkner (In re Hill), 120 B.R. 56, 1990 Bankr. LEXIS 2187 (Miss. 1990).

120 B.R. 56 (Hill v. Bank of Falkner (In re Hill)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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