Sanders v. First National Bank of Camden (In re Sanders)

75 B.R. 751, 1987 Bankr. LEXIS 1094
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedJanuary 21, 1987
DocketBankruptcy No. ED 84-90M; Adv. No. 85-186M
StatusPublished

This text of 75 B.R. 751 (Sanders v. First National Bank of Camden (In re Sanders)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanders v. First National Bank of Camden (In re Sanders), 75 B.R. 751, 1987 Bankr. LEXIS 1094 (Ark. 1987).

Opinion

MEMORANDUM OPINION

JAMES G. MIXON, Bankruptcy Judge.

On November 1, 1984, John and Mary Ellen Sanders filed a joint voluntary petition for relief under the provisions of chapter 11. Because of the potential conflict of interest, separate counsel was employed by each of the debtors-in-possession. On May 6, 1985, Mrs. Sanders filed this complaint to set aside First National Bank of Camden, Arkansas' (FNB), mortgage on the South lk of the Southeast lk of Section 36, Township 13 South, Range 19 West, Oua-chita County, Arkansas, and to determine that Mrs. Sanders’ liability on note No. 90-67834 has been discharged.

Other actions were filed by Mrs. Sanders against The Merchants and Planters Bank, Camden, Arkansas, AP 85-183M, AP 85-188M and AP 85-189M, FNB, AP 85-184M and AP 85-187M, and the Stephens Security Bank, AP 85-185M. All of these adversary proceedings were consolidated for trial by agreement. A separate memorandum opinion will be issued in each case.

The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K). The Court has jurisdiction to enter a final judgment in the case. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule of Procedure 7052.

Mrs. Sanders was born and raised in Camden. She lived and worked in New Orleans for about six years after graduating from college but has not worked from the time of her marriage to Mr. Sanders in 1968 until after the petition was filed. Mr. and Mrs. Sanders moved to Camden in 1969.

Mrs. Sanders inherited as her separate property substantial amounts of property from her father’s estate. She also acquired separate property from her mother.

[753]*753On April 7, 1982, John Sanders, Inc., Architect, a closely held corporation owned solely by Mr. Sanders, executed a promissory note to FNB in the sum of $50,000.00. The note was signed John Sanders, Inc., Architect, by John Sanders. Mrs. Sanders signed the note as an endorser. The note provided that interest accrued at FNB’s prime rate but in no event less than 12% per annum. The note was due to be repaid in one installment of principal and all accrued interest on demand and if no demand then ninety days from April 7, 1982.

Also, on April 7, 1982, Mr. and Mrs. Sanders executed a mortgage on Mrs. Sanders’ separate property having the following property description:

The South lk of the SEVi of Section 36, Township 13 South, Range 19 West, situated in Ouachita County, Arkansas.

This mortgage was given to secure the repayment of the above stated indebtedness. The mortgage was properly recorded. The mortgage has not been released of record.

Mr. Sanders, on behalf of John Sanders, Inc., Architect, executed an extension agreement on July 6, 1982, extending the due date of the note ninety days from July 6,1982. John Sanders, Inc., Architect, also paid $2,034.24 interest at the time of the execution of the extension. The note was also extended by Mr. Sanders on behalf of John Sanders, Inc., Architect, on October 15, 1982, January 17, 1983, April 14, 1983, August 4, 1983, November 9, 1983, February 7, 1984, and June 11, 1984. Over the period of the various extensions the principal balance was reduced to $39,000.00 and all accrued interest paid. The interest rate was also adjusted upward several times by virtue of the extension agreements. All payments of principal and interest were made by John Sanders, Inc., Architect. At no time was Mrs. Sanders advised that the due date was being extended or the interest rate increased.

I

MRS. SANDERS STATUS AS AN ACCOMMODATION ENDORSER

Both sides have presented arguments on the issue of whether Mrs. Sanders signed the note as an accommodation maker or primary maker.

Ark.Stat.Ann. § 85-3-606(l)(a) (Add. 1961) provides as follows:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent fhe holder (a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary.

Courts which have considered the question of whether the defenses under Uniform Commercial Code § 3-606 are available only to accommodation parties are divided. Compare Federal Deposit Ins. v. Blue Rock Shopping Center, 766 F.2d 744, 749 (3rd Cir.1985) (§ 3-606 is meant to apply only to parties who act as sureties and to co-makers who sign a note to accommodate the primary obligor and who have a right of recourse against the primary obli-gor) with Bishop v. United Missouri Bank of Carthage, 647 S.W.2d 625, 629 (Mo.App.1983) (plain unambiguous language of statute makes defenses available to any party to the instrument including co-makers). The Supreme Court of Arkansas has held specifically that the defenses under Ark. Stat.Ann. § 85-3-606 (Add. 1961) are available to both makers and accommodation parties. Rushton v. U.M. & M. Credit Corporation, 245 Ark. 703, 434 S.W.2d 81 (1968). Regardless of Mrs. Sanders’ status, under Arkansas law she is entitled to assert the defenses available pursuant to Ark.Stat.Ann. § 85-3-606 (Add. 1961).

II

DISCHARGE OF NOTE LIABILITY

Ark.Stat.Ann. § 85-3-606(l)(a) and (2)(a), (b) and (e) (Add.1961) provide as follows:

[754]*754(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a)without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary.
(2) By express reservation of rights against a party with a right of recourse the holder preserves
(a) all his rights against such party as of the time when the instrument was originally due; and
(b) the right of the party to pay the instrument as of that time; and
(c) all rights of such party to recourse against others.

If the due date of the note is extended without the consent of a party eligible to rely on U.C.C.

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Bluebook (online)
75 B.R. 751, 1987 Bankr. LEXIS 1094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-first-national-bank-of-camden-in-re-sanders-arwb-1987.