South Side National Bank v. Commerce Bank of St. Louis, N.A.

897 S.W.2d 657, 1995 Mo. App. LEXIS 914, 1995 WL 264590
CourtMissouri Court of Appeals
DecidedMay 9, 1995
DocketNo. 66646
StatusPublished
Cited by1 cases

This text of 897 S.W.2d 657 (South Side National Bank v. Commerce Bank of St. Louis, N.A.) 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
South Side National Bank v. Commerce Bank of St. Louis, N.A., 897 S.W.2d 657, 1995 Mo. App. LEXIS 914, 1995 WL 264590 (Mo. Ct. App. 1995).

Opinion

PUDLOWSKI, Judge.

This is an appeal from a judge tried case concerning the priority of two lienholders over a parcel of real property. The trial court held that advances made by Commerce Bank of St. Louis, N.A. (Commerce) were covered by Commerce’s previous recording of a deed with a future advance clause, and that this gave Commerce priority over a judgment lien which South Side National Bank in St. Louis (South Side) obtained in the interim. We affirm.

In 1985 debtor Scott obtained a loan from Commerce. It was secured by a deed of trust on a certain parcel of property which Scott owned in Lake St. Louis. The pertinent part of the deed, recorded on July 12, 1985, reads as follows:

This Deed of Trust secures future advances made pursuant to said note and also secures all other future obligations of Grantor to Lender which are contractual in nature. The total amount of the obligations which may be secured hereby is $50,000, provided such advances or obligations are incurred within ten years from the date hereof. This Deed of Trust is governed by Section 443.055 R.S.Mo.

A deed dated September 12, 1986, and recorded on September 22, 1986, transferred ownership of the property to his corporation, Winfield Financial Services, Inc. (Winfield). We held this transfer void in South Side Nat. [659]*659Bank v. Winfield Fin. Serv., 783 S.W.2d 140 (Mo.App.E.D.1989).

On December 1, 1986, Commerce recorded a second deed to secure an October 15, 1986 loan of $15,000.

On February 13,1987, South Side obtained a judgment lien against Scott’s property.

On January 23, 1989, Scott owed a balance of $17,672.50 on advances made by Commerce pursuant to the 1985 deed of trust. Scott and his wife wished to borrow more money. To accommodate the Scotts, Commerce agreed to increase the Scotts’ available line of secured credit. Therefore, Commerce accepted a new note from Scott, dated January 23,1989, for $50,000, which explicitly stated that it was secured by the 1985 deed of trust. Commerce also cancelled an old note on which Scott owed the $17,672.50. Contemporaneously, Commerce’s documentation department prepared a new deed of trust securing future advances up to $75,000. Commerce also prepared, but did not sign, a termination of the future advance clause on the 1985 deed of trust, so as to meet the legal requirement that there not be two future advance clauses on the same property.

On January 24,1989, $32,327.50 (the difference between $50,000 from the new note and $17,672.50 from the cancelled note) was disbursed at Scott’s direction into his account bearing the name Boulder Valley Ranch, Inc.

On January 25, 1989, a Commerce vice president signed, in the presence of a notary, the termination of the future advance clause from the 1985 deed of trust.

On January 27, 1989, the new deed with the $75,000 future advance clause was recorded.

On June 8, 1990, South Side forced an execution sale on Scott’s property and purchased it.

On November 5,1990, South Side tendered an offer to Commerce in the amount of $18,-672.50 in an effort to require Commerce to release its liens on the property. Commerce refused on the basis that the amount tendered was insufficient, and stated that it would foreclose on the property if it did not receive $44,654.55, plus additional interest.

On December 6,1990, South Side tendered a second offer to Commerce in the amount of $44,733.21, reserving its right to proceed to recover what it considered excessive payment. Commerce accepted and assigned all notes and deeds on the property to South Side.

South Side now brings this action for money had and received in violation of § 443.055 RSMo 1986, governing future advance clauses. Its theory is that it did not need to pay the full amount which Commerce demanded because some of Commerce’s advances became junior in priority to South Side’s judgment lien when a one or two day gap occurred between the termination of one future advance clause and the making of another. The case was tried before Hon. Richard J. Mehan of the City of St. Louis Circuit Court, who entered a verdict and judgment against South Side.

It is undisputed that Commerce held a valid deed of trust against the property for all future advances and obligations, and that this deed was recorded in 1985. South Side subsequently obtained its judgment lien in 1987. Section 443.055.6 RSMo 19861 states:

As to any third party who may acquire any rights in or lien upon the encumbered real property, the priority of the lien securing any such future advances or other future obligations shall date from the time the instrument is filed of record....

Section 443.055.2 RSMo 1986 states:

The total amount of obligations that may be secured by such an instrument may decrease or increase from time to time, but ... the total principal amount of the obligations secured may not exceed the face amount stated in the instrument.

These two provisions make it clear that all advances made pursuant to a deed with a future advance clause relate back to the date of the deed for creditor priority purposes, so long as the balance owing on any given day does not exceed the face amount of the mortgage. Comment, Future Advances in Missouri, 49 Mo. L. Rev 103, 115 n. 83 (1984). Therefore, all advances or obligations, not exceeding $50,000 in the aggregate at any [660]*660given time, made by Commerce pursuant to the deed of trust of 1985, date back to 1985, and thus would have priority over South Side’s 1987 judgment lien.

South Side claims that the $32,327.50 advance of funds, posted January 24, 1989, was not covered by the 1985 agreement’s future advance clause because a document dated January 23, 1989 terminated security for all future advances. However, this document was not signed by any officer of Commerce until January 25, 1989, as evidenced by the date of the notarization on the face of the instrument. The termination document was not effective before the 25th, and did not affect the future advance clause of the deed of 1985 before the 25th. Therefore, the 1985 deed covered the $32,327.50 advance made on the 24th.

It should be emphasized that there was no request by the debtor to terminate a future advance clause pursuant to § 443.055.7 RSMo 1986.2 If that were the case, the termination of the future advance clause would have been effective immediately upon notice. Comment, supra, 49 Mo. L.Rev. at 116. Although the pre-printed termination document contained a provision indicating that notice was received from the borrower, it is clear from the trial testimony that Commerce initiated the termination of this future advance clause on its own, and never received notice of any kind from Scott. The release of a lien is primarily a question of the holder’s intent. State v. Shain, 342 Mo. 1148, 119 S.W.2d 758, 760 (1938). The note securing the $32,327.50, dated January 23, 1989, specifically refers to the 1985 deed. We find from the evidence Commerce, the holder, did not intend to terminate the 1985 deed’s future advance clause before making the $32,327.50 advance.

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897 S.W.2d 657, 1995 Mo. App. LEXIS 914, 1995 WL 264590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-side-national-bank-v-commerce-bank-of-st-louis-na-moctapp-1995.