North Star Apartments v. Goppert Bank & Trust Co.

657 S.W.2d 253, 1983 Mo. App. LEXIS 3440
CourtMissouri Court of Appeals
DecidedMay 10, 1983
DocketNo. WD 33988
StatusPublished
Cited by6 cases

This text of 657 S.W.2d 253 (North Star Apartments v. Goppert Bank & Trust Co.) 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.

Bluebook
North Star Apartments v. Goppert Bank & Trust Co., 657 S.W.2d 253, 1983 Mo. App. LEXIS 3440 (Mo. Ct. App. 1983).

Opinion

LOWENSTEIN, Judge.

Appellant Goppert Bank & Trust Company, (Goppert Bank), appeals from a final judgment of the Circuit Court of Clay County, which enjoined it from conducting a foreclosure sale of respondent’s, North Star Apartments (North Star) property by trustee under a deed of trust.

On March 29,1973, the North Star Apartments partnership as maker delivered a promissory note payable to John and Josephine Key (the Keys), for the purchase of certain real estate. The note provided that the principal amount of $470,000.00 was to be paid to the payees, with interest at 8 per cent, and payments were to be made in installments of $3,650.00 a month, due on the 5th day of each month. The note also provided that there would be no personal obligation on the partners to pay any deficiency on the note, but that collection would be made only against the property securing the note. The same day, a deed of trust was drawn securing the note in favor of the payees. The note was endorsed in blank by the Keys and was assigned to Goppert Bank, who has had possession of the note for quite some period of time. Goppert Bank was in possession of the North Star partnership note at the time this suit was filed, and at the time of the first hearing in this matter. The Keys owed a separate note to Goppert Bank and had assigned the North Star Apartments’ partnership note and deed of trust to Goppert as security for the payment of their note.

The real estate involved in this case consists of a four building apartment complex, located in Gladstone, Clay County, Missouri. Respondent North Star Apartments, that acquired the property from the Keys, is a limited partnership and respondent John R. Hutcherson, is the general partner. North Star began to make payments on the note secured by the deed of trust soon after acquiring the property. These payments were made by checks drawn on a partnership account and signed by Mr. Hutcherson. The payments were made to the Goppert Bank, holder of the note. These payments were due on the 5th of each month. Up until the time that the October 5, 1981 installment came due, North Star had made all of its monthly payments, although many of them were made as late as the 16th of the month.

[255]*255Payment on the October 5, 1981 installment was late. A check drawn on the Metro North State Bank, against the North Star Partnership account, signed by Mr. Hutcherson and dated October 7, 1981 was received by Goppert Bank. This check, in the amount of $3,650.00 was twice sent through Metro North State Bank and returned for insufficient funds. At this point Goppert Bank determined that North Star was in default and declared the entire amount of the note to be due and payable in accordance with an express acceleration clause in the note. Notice of acceleration was given to both North Star Apartments and Mr. Hutcherson, and when payment was not forthcoming, foreclosure proceedings were instituted by Goppert Bank.

In addition to the bad check, Goppert Bank was advised in early October, 1981, that North Star’s insurance on the mortgaged property was being cancelled effective October 25,1981, due to nonpayment of premiums. Following receipt of this information regarding the insurance, Goppert Bank discussed the problem with Mr. Key who then personally obtained insurance on the apartment complex.

The foreclosure was set for January 29, 1982, and on that same day, North Star and Hutcherson filed a petition for a temporary restraining order and permanent injunction, seeking to enjoin the sale of the property under the trustee’s foreclosure of the deed of trust held by Goppert Bank.

A hearing was held January 29, 1982, in Clay County Circuit Court. The Circuit Judge granted the temporary restraining order. The sale was restrained upon the posting of a nominal bond ($1500). At the time of the hearing it was brought out in evidence that the 1980 and 1981 real estate taxes on the North Star property were in default. The amount of tax owed by North Star, with interest and penalties, was estimated at approximately $22,000.00.

During February and March several hearings were held and on March 24, 1982, North Star and Hutcherson filed their First Amended Petition for a temporary restraining order and permanent injunction, Count I, and a Count II was added, alleging a controversy existed between the Keys and Goppert Bank as to the disposition of the proceeds of the note. The Court on March 31,1982 entered its order granting a permanent injunction.1 Appellants, Goppert Bank and Trustee, William C. Partin filed their separate answer and counterclaim for an accounting and restitution alleging North Star and Hutcherson were not entitled to relief by way of a restraining order or injunction, and that such relief was improperly awarded. Goppert and Partin also contended that in the event Goppert Bank sustained damages by reason of being denied its right to foreclosure, and having been deprived of its security, North Star and Hutcherson should be required to pay compensatory damages.

The trial court determined that the restraining order and injunction were properly granted, and entered a final decree on June 16, 1982, from which this appeal is taken. The decree found no default on the note or the deed of trust, denied Goppert’s request for accounting and ordered the clerk to pay amounts paid into court by North Star (note payments) paid to Goppert and credited to the Keys’ account.

Appellants, Goppert and ■ Partin raise three points on appeal. The first point contends that the court erred in enjoining foreclosure because the facts conclusively established that the note secured by the deed of trust was in default in that an installment had not been made, and thus the holder of the note and deed of trust was lawfully entitled to foreclose the deed of trust and avail itself of the security. Appellant’s second point contends error in enjoining foreclosure because the owners of the property were in default of a condition and covenant of the deed of trust which required it to pay when due or within the time required by law all taxes and assessments levied or charged upon the property. Their final point contends error in enjoining foreclosure because North Star breached a [256]*256covenant of the deed of trust which required it to keep the secured property satisfactorily insured with the policies constantly assigned and delivered to the Goppert Bank. Goppert’s claim for restitution and accounting was not raised on appeal.

The judgment of the trial court is reversed and remanded with directions.

Appellant Goppert Bank is clearly the holder of the note at issue in this case and thus is entitled to the rights of a holder. Goppert Bank has had possession of the promissory note which was endorsed in blank by the Keys, since 1973, and was in possession at the time of the respondent’s default. As appellant correctly notes, § 400.1-201(20) RSMo.19792 (Uniform Commercial Code) defines a “holder” as follows:

‘Holder’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or endorsed to him or to his order or to bearer or in blank.” (Emphasis added.)

The promissory note held by Goppert Bank had an express clause providing for acceleration of payment upon default. This clause clearly stated:

“If default is made in the payment of any installment when due,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Untitled Case
W.D. Missouri, 2026
Simpson v. Simpson
295 S.W.3d 199 (Missouri Court of Appeals, 2009)
Tiller v. 166 Auto Auction
65 S.W.3d 1 (Missouri Court of Appeals, 2001)
Bolz v. Hatfield
41 S.W.3d 566 (Missouri Court of Appeals, 2001)
Curnutt v. Scott Melvin Transport, Inc.
903 S.W.2d 184 (Missouri Court of Appeals, 1995)
Jenkins v. Thyer
760 S.W.2d 932 (Missouri Court of Appeals, 1988)
Dippel v. Rokwell Industries, Inc.
715 S.W.2d 553 (Missouri Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
657 S.W.2d 253, 1983 Mo. App. LEXIS 3440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-star-apartments-v-goppert-bank-trust-co-moctapp-1983.