In re Tallant

72 B.R. 302, 1987 Bankr. LEXIS 487
CourtUnited States Bankruptcy Court, M.D. Alabama
DecidedApril 2, 1987
DocketBankruptcy No. 86-01302
StatusPublished
Cited by1 cases

This text of 72 B.R. 302 (In re Tallant) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tallant, 72 B.R. 302, 1987 Bankr. LEXIS 487 (Ala. 1987).

Opinion

OPINION ON MOTION FOR VALUATION OF SECURITY

A. POPE GORDON, Bankruptcy Judge.

The debtor, Eldon T. Tallant, filed a motion requesting the court to determine whether the dragnet clause in a hypoth-ecation agreement between the debtor and his father, Elmer A. Tallant, as borrowers, and the creditor, First Alabama Bank, operates to continue the property hypothecated as security for a loan made later to the debtor alone.

The matter was submitted upon the pleadings and briefs of counsel for the parties.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(B), (K), and (0). These findings of fact and conclusions of law are made pursuant to Rule 7052, Federal Rules of Bankruptcy Procedure.

The facts before the court are not disputed. The debtor and his father are joint payees of a real estate mortgage note from Montgomery Growth Properties, Ltd. The Montgomery note was assigned by the debtor and his father to the bank pursuant to a hypothecation agreement dated October 11, 1976. The hypothecation agreement was executed by the debtor and his father, and was given to secure an indebtedness evidenced by a note of even date to the bank. That 1976 note secured by the hypothecation agreement was also executed by the debtor and his father, and remains unsatisfied.

Some seven years later, in 1983, the debt- or became indebted to the bank and executed two notes to the bank evidencing the debt. The notes were executed solely by the debtor doing business as “Tallant Farms.”

The balance due on the 1976 note is much smaller than the balance due on the 1983 notes. Once the 1976 note is paid off, the Montgomery note will no longer be encumbered unless the language of the future advance provisions in the hypothecation agreement means that the Montgomery note will continue as security for the debt- or’s 1983 notes.

For the purpose of consummating the confirmed Chapter 11 plan, it is necessary to determine the extent of the bank’s interest in the Montgomery note, as required by 11 U.S.C. § 506(a). That requires determining whether the Montgomery note is security for payment of the 1983 notes.

The future advance (dragnet) provisions of the hypothecation agreement consist of the consideration clause and the defeasance clause:

Consideration clause

Witnesseth:

[304]*304That the party of the first part [“Eldon T. Tallant, Elmer A. Tallant”] has this day borrowed from the party of the second part the sum of Two Hundred Forty-three Thousand and no/100 Dollars which is evidenced by note of party of the first part, dated October 11,1976....

And, whereas, the party of the first part is desirous of securing the prompt payment of said note when the same falls due, as well as any other debt which the party of the first part may now, or hereafter owe to the party of the second part, as principal, surety, endorser, or otherwise, before this pledge is surrendered and cancelled.

Now, Therefore, in consideration of the premises and for the purpose of securing the payment of the note above described, as well as any other indebtedness now or hereafter due or owing to the party of the second part, the party of the first part does hereby grant, bargain, sell.... Defeasance clause

If the party of the first part shall pay the note secured hereby when the same becomes due, and any other debt whether as principal, surety, endorser, or otherwise, which the party of the first part may then owe the party of the second part or which may be incurred by the party of the first part with the party of the second part before the surrender or cancellation of this agreement, then this agreement shall be void.

The bank contends and the debtor denies that these clauses show an intent to continue the Montgomery note as security for the debtor’s 1983 notes after completion of payment of the 1976 note. Therefore, it is necessary to construe the meaning of these clauses.

This language leaves no doubt that future advances of money made to both the debtor and his father prior to payment of the 1976 note would be secured by the Montgomery note. The language found in those clauses is typical of language generally held to create valid future advance clauses. See First National Bank v. Bain, 237 Ala. 580, 188 So. 64 (1939); and City National Bank of Dothan v. First National Bank of Dothan, 285 Ala. 340, 232 So.2d 342 (1970). Although those cases, as well as some of the other cases relied on by the bank and the debtor, are grounded on construction of mortgage clauses, there seems to be no good reason why those cases should not also be applicable to hypothecation agreements. A widely accepted general rule of construction is that a mortgage and the note secured by the mortgage should be construed together as parts of one transaction. That rule will be applied to the hypothecation agreement and its notes, just as with a mortgage and a mortgage note. Also, it is elementary that contract law applies in the construction and interpretation of hypothecation agreements qua contracts, as well as mortgages. See 55 Am.Jur.2d Mortgages § 175 and § 176 (1964).

At the heart of the issue over the operation of the future advance clause, as presented by the parties, is the interpretation of the term “party of the first part” as used in the hypothecation agreement. The parties urge the court to do what amounts to assigning an artificial meaning to the term “party of the first part,” which is used ungrammatically in the hypothecation agreement to stand for “Eldon T. Tallant, [sic] Elmer A. Tallant.” (emphasis added) At issue, they say, is whether that term includes only the debtor and the father jointly or whether it includes either one without necessarily including both.

The debtor argues — no doubt inspired by the cases of Cordele Banking Company v. Powers, 217 Ga. 616, 124 S.E.2d 275 (1962) and Hill v. Perkins, 218 Ga. 354, 127 S.E.2d 909 (1962) — that “party of the first part” designates the debtor and his father in the singular and, therefore, the individual debt of the debtor is not a debt of the “party of first part.” Ergo, the 1983 notes signed by the debtor alone are not secured by the hypothecated property.

On the other hand, the bank cites several Alabama cases apparently holding that when “party of the first part” is used, as the word “mortgagor” was used, ungrammatically to denominate more than one entity, the term should be read to mean ei[305]*305ther party or both. Therefore, the bank says, a future advance made to one of the parties only is secured by the hypothecated property, relying on, among other cases, Luverne Land Company v. Bank of Luverne, 200 Ala. 85, 75 So. 461 (1917); First National Bank v. Bain, 237 Ala. 580, 188 So. 64 (1939); Martin v. First National Bank of Opelika, 279 Ala. 303, 184 So.2d 815 (1966); and Crescent Credit Corporation v. Union Bank & Trust Company, 51 Ala.App.

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72 B.R. 302, 1987 Bankr. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tallant-almb-1987.