Phoenix Acquisition Corp. v. Campcore, Inc.

612 N.E.2d 1219, 81 N.Y.2d 138, 596 N.Y.S.2d 752, 1993 N.Y. LEXIS 639
CourtNew York Court of Appeals
DecidedMarch 30, 1993
StatusPublished
Cited by64 cases

This text of 612 N.E.2d 1219 (Phoenix Acquisition Corp. v. Campcore, Inc.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phoenix Acquisition Corp. v. Campcore, Inc., 612 N.E.2d 1219, 81 N.Y.2d 138, 596 N.Y.S.2d 752, 1993 N.Y. LEXIS 639 (N.Y. 1993).

Opinion

OPINION OF THE COURT

Bellacosa, J.

We granted leave in this case to decide whether defendant debtor Campcore, Inc.’s default on one installment payment under its promissory note triggered the Statute of Limitations accrual against the entire debt. Upon that initial default in the installment payment, the creditor, Marine Midland Bank, chose not to exercise its option to accelerate the balance of the indebtedness. At issue is Marine’s attempt to recover against a guarantor, Chester Wickwire (Wickwire), on otherwise timely portions of Campcore’s debt. Supreme Court and the Appellate Division ruled that the Statute of Limitations blocked Marine’s reach against guarantor-Wickwire, because Wickwire became obligated to pay the whole debt upon the initial default in a payment by Campcore. On the grant of leave to appeal to Marine, we now reverse the order of the Appellate Division.

I.

In July 1978, appellant creditor Marine loaned Campcore $500,000, secured by a promissory note providing, in part, that "[t]he holder hereof shall have the option to declare the balance due and owing hereunder at any time to be immediately due and payable * * * upon the happening of * * * 1. Nonpayment of any sum of principal or interest on the date which the same shall become due”. The term loan agreement between the debtor and creditor contained a corresponding acceleration option exercisable unilaterally by the creditor bank. Marine later acquired a mortgage from Phoenix Acquisition Corp. and Dome Corp. as security for the loan.

Wickwire guaranteed a portion of the loan as follows: "[T]he undersigned hereby absolutely and unconditionally guaranties [141]*141the full and prompt payment to Bank when due, whether by acceleration or otherwise, of such indebtedness of the borrower to Bank to the extent of [$105,000] and the unpaid accrued interest thereon.” This guaranty also contained a provision that Marine would notify Wickwire of default in payment of any installment of principal or interest within 30 days after such default. The guaranty further added that "[i]f any default shall be made in the payment of the above indebtedness, the [guarantor] hereby agrees to pay the same to the extent above provided [ ] without requiring protest or notice of nonpayment to the [guarantor]”.

On April 1, 1983, Campcore defaulted on a principal payment of $6,000 plus interest. From October 1983 to October 1987, Campcore made partial payments on other installments on the note, but it never regained currency on the payments of its indebtedness. In January 1988, Marine notified Camp-core that its 1978 term loan had matured and demanded payment in full — the principal balance of $244,593.51 and interest due of $21,190. Litigation ensued in August 1990 when plaintiffs Phoenix Acquisition Corp. and Dome Corp. sought to rescind the mortgage held by Marine securing the loan. In October 1990, as a cross claim in that action, Wick-wire sought a declaration that Marine’s claim on the Wick-wire guaranty was time-barred.

The Supreme Court granted Wickwire’s motion for summary judgment, and the Appellate Division affirmed. In reversing, we hold that separate causes of action accrued as installments of the loan indebtedness became due and payable. We reject guarantor Wickwire’s argument that Creditor-Marine’s action was barred by the Statute of Limitations because any action with respect to the entire debt accrued all at once on April 1, 1983 upon the initial default in an installment payment.

IL

The contractual language fixes the boundaries of the legal obligation of the guarantor. Without acceleration of the entire debt by Marine, Wickwire was liable only for the payment of the installment which was due and payable and in default. The Statute of Limitations began to run only for that discrete obligation and amount. The fact that Marine had a bargained-for, exclusive acceleration option to call the entire indebtedness due immediately upon any default does not, by operation [142]*142of law, trigger the accrual of a cause of action for portions of the indebtedness which neither the debtor nor the guarantor were then liable to pay.

By the terms of the promissory note and the term loan agreement between Marine and Campcore, payments of principal and interest became due and payable according to a specified repayment schedule. Unless Marine exercised the acceleration option, the balance of the loan was not due and payable by the debtor. The guaranty obligated Wickwire to make "full and prompt payment to Bank when due, whether by acceleration or otherwise” of "indebtedness” of Campcore to Marine, up to the limit of $105,000 plus interest. The Wickwire guaranty is an explicit guaranty of "payment * * * when due”. Therefore, Wickwire became explicitly and contractually liable only for sums which were due and payable.

Wickwire acknowledges that the extent of the debtor’s liability following a single, skipped installment payment would depend on whether the creditor exercised the acceleration option. However, he would contrast the debtor’s limited obligation on a default in a single payment from his broader immediate obligation to pay the entire debt as guarantor, including amounts not accelerated and not yet due and payable by the debtor. Wickwire finds support for this view in particular language of the guaranty, which stipulates that "[i]f any default shall be made in the payment of the above indebtedness, the undersigned hereby agrees to pay the same to the extent above provided”, and contends that the "extent above provided” is the maximum amount of the guaranty, $105,000. The Appellate Division accepted that distinction, finding that "[t]he guarantee provides that Wickwire is obligated to pay the entire debt (up to $105,000) upon 'any’ default by the debtor.” (182 AD2d 1101.)

We do not agree that the language of this guaranty supports an extension of the obligation of the guarantor beyond the indebtedness which is due and payable by the debtor in the first instance. The portion of the guaranty instrument which articulates liability upon "any default * * * to the extent above provided” is part of a paragraph discussing notice requirements. It should not be invoked to add obligations to the substantive guaranty liability. Moreover, the express limitation, "to the extent above provided” should be read, in conjunction with the primary guaranty obligation clause, "when due, whether by acceleration or otherwise”. This liabil[143]*143ity refers only to amounts due and payable to the limit of $105,000.

Apart from the language of the guaranty, the authorities relied upon to trigger a complete accrual upon any default in these circumstances also falter. General Phoenix Corp. v Cabot (300 NY 87) is concerned essentially with the distinction between a guaranty of payment and a guaranty of collection. That case holds that where a guaranty is one of payment, liability under a guaranty attaches and a cause of action accrues against the guarantor as soon as there is a default by the debtor in the payment of the obligation. Chemical Bank N. Y. Trust Co. v Amory (27 AD2d 730, affd no opn 21 NY2d 832), explicitly concerned a demand promissory note. The Statute of Limitations affecting a note payable upon demand, without doubt, begins to run from the date of its execution (McMullen v Rafferty, 89 NY 456, 459 [1882]). Thus, the holding of Amory,

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Bluebook (online)
612 N.E.2d 1219, 81 N.Y.2d 138, 596 N.Y.S.2d 752, 1993 N.Y. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-acquisition-corp-v-campcore-inc-ny-1993.