Sanders v. Merchants & Planters Bank (In re Sanders)

75 B.R. 761, 1987 Bankr. LEXIS 1099
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedJanuary 21, 1987
DocketBankruptcy No. ED 84-90M; Adv. No. 85-189M
StatusPublished

This text of 75 B.R. 761 (Sanders v. Merchants & Planters Bank (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. Merchants & Planters Bank (In re Sanders), 75 B.R. 761, 1987 Bankr. LEXIS 1099 (Ark. 1987).

Opinion

MEMORANDUM OPINION

JAMES G. MIXON, Bankruptcy Judge.

On November 1, 1984, John and Mary Sanders filed a joint voluntary petition for relief under the provisions of chapter 11. Because of a 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 The Merchants & Planters Bank, Camden, Arkansas’ (M & P), claim of lien on her real property.

Other actions were filed by Mrs. Sanders against M & P, AP 85-183M and AP 85-188M, the First National Bank of Camden, Arkansas, AP 85-184M, AP 85-186M and AP 85-187M and 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 proceedings 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 a,nd worked in New Orleans for about six years after graduating from college but has not worked since her marriage to Mr. Sanders in 1968 until after the petition was filed. Mr. and Mrs. Sanders moved to Camden in 1969.

Mrs. Sanders’ father was an attorney for M & P and a member of the board of directors of M & P before his death in 1975. Mrs. Sanders inherited as her separate property substantial amounts of property [763]*763from her father’s estate. She also acquired separate property from her mother.

On June 1, 1983, Mr. and Mrs. Sanders executed a promissory note in favor of M & P in the principal sum of $35,212.00. Interest accrued on the unpaid principal at the rate of 13.5% per annum. The note was due to be repaid on demand and, but if no demand is made, then the note became due on May 81, 1984. The loan proceeds were delivered to Mr. Sanders for use in the operation of his business of constructing and operating a motel in Camden, Arkansas. Mrs. Sanders received none of the proceeds from the loan.

On June 1, 1983, Mr. and Mrs. Sanders executed a mortgage in favor of M & P on real property located in Ouachita County, Arkansas, and described as follows:

The Northeast Quarter of Southeast Quarter of Section 33; and the Northwest Quarter of Southwest Quarter of Section 34; all in Township 15 South, Range 17 West, Ouachita County, Arkansas.

The real property was titled in Mrs. Sanders’ name and was her separate property.

The mortgage provides, among other things, that the “conveyance is given as a Mortgage for the purpose of securing: (a) the payment of 1 Promissory Note(s) of even date herewith and all extensions and renewals of the indebtedness represented thereby in the principal amount of Thirty-Five Thousand Two Hundred Twelve and no/100 Dollars, bearing interest from date at the rate of 13V2 percent per annum, and payable as follows: Due May 31, 1984.”

On August 22, 1984, Mr. Sanders paid the interest on the note current. On August 23, 1984, Mr. Sanders executed an extension agreement which extended the due date of the promissory note to February 19, 1985, and increased the interest rate to 14% per annum.1 Mrs. Sanders did not sign the extension agreement nor was she ever advised by her husband or M & P that the due date of the note was being extended or the interest rate increased. Mrs. Sanders testified that she never gave her consent to the extension or the increase in interest rate and that she assumed that her husband’s obligation was being satisfied from the operation of the motel in Camden.

I

MRS. SANDERS’ STATUS: MAKER OR ACCOMMODATION MAKER?

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 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.

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. [764]*7641983) (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 OP NOTE LIABILITY

If the due date of a note is extended without the consent of a party eligible to rely on U.C.C. § 3-606 that party is discharged from liability to the holder of the note. Holcomb State Bank v. Adamson, 107 Ill.App.3d 908, 63 Ill.Dec. 704, 708, 438 N.E.2d 635, 639 (1982); First Nat. Bank of Layton v. Egbert, 663 P.2d 85, 87 (Utah 1983); Varga v. Woods, 381 N.W.2d 247, 252 (S.D.1986).

The due date of the note was May 31, 1984, and was extended one time by agreement between Mr. Sanders and M & P as recited above.

Mrs. Sanders argues that she should be discharged on the note to M & P because she did not consent to the extension of the note and because she had no notice of nor gave consent to the renewal of the note.

M & P argues that Mrs. Sanders gave her consent to extension of the note by signing the mortgage which contained the following language:

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Bluebook (online)
75 B.R. 761, 1987 Bankr. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-merchants-planters-bank-in-re-sanders-arwb-1987.