Marine Midland Bank, N. A. v. United Missouri Bank

223 A.D.2d 119, 643 N.Y.S.2d 528, 1996 N.Y. App. Div. LEXIS 6035
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 28, 1996
StatusPublished
Cited by41 cases

This text of 223 A.D.2d 119 (Marine Midland Bank, N. A. v. United Missouri Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marine Midland Bank, N. A. v. United Missouri Bank, 223 A.D.2d 119, 643 N.Y.S.2d 528, 1996 N.Y. App. Div. LEXIS 6035 (N.Y. Ct. App. 1996).

Opinion

OPINION OF THE COURT

Ellerin, J.

The issue before us is whether New York or Kansas law applies in this action against a deceased Kansas debtor’s estate seeking recovery on a debt which accrued in New York under an agreement providing that New York law would govern in any action for its enforcement.

The underlying facts are essentially undisputed. On August 31, 1986, the decedent, James D.H. Reynolds, M.D., a Kansas resident, executed a negotiable promissory note together with a subscription agreement and security agreement for the purchase of an interest in a Connecticut limited partnership. The partnership was formed to acquire a Brentwood, Tennessee, shopping center and was sponsored by Integrated Resources, Inc. (Integrated), a corporation having its headquarters in New York. Decedent made a modest down payment at the time he purchased his interest and was thereafter required by the note to make quarterly installment payments over a six-year period to the partnership at Integrated’s headquarters in New York.

The promissory note included terms accelerating the payment of principal and accrued interest upon a default in the payment schedule, requiring postdefault interest at the rate of 2% per month, binding decedent’s legal representatives, heirs, successors and assigns, and providing that New York law would govern any action brought to enforce its provisions. In addition, the security agreement contained clauses in which decedent consented to the exercise of in personam jurisdiction in New York, waived all defenses, including any challenges to [121]*121jurisdiction or venue, and agreed that service of process by certified mail was valid unless the partnership was notified otherwise in writing.

On January 31, 1987, the date the first payment was due, decedent and his wife were killed in an airplane accident, and, pursuant to the terms of his will, defendant United Missouri Bank, N.A. (UMB), was appointed executor of his estate. On February 26, 1987, UMB wrote to Integrated, advised it of decedent’s death, and asked that the partnership postpone any action on the payments for 30 days. After probate proceedings were commenced in the Kansas courts, UMB, as required under the Kansas Probate Code, published a form "Notice to Creditors” in a Kansas semiweekly newspaper informing creditors of the estate that they must "exhibit their demands” by filing a claim with the Kansas probate court within four months from the date the Notice first appeared (i.e., by July 6, 1987) or their claims would be barred under the Kansas nonclaim statute (Kan Stat Annot § 59-2239 [1]). The statute provided as follows: "All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within four months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control.”

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Bluebook (online)
223 A.D.2d 119, 643 N.Y.S.2d 528, 1996 N.Y. App. Div. LEXIS 6035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marine-midland-bank-n-a-v-united-missouri-bank-nyappdiv-1996.