Welch v. Wachovia Bank, N.A.

993 So. 2d 868, 2008 Ala. LEXIS 84, 2008 WL 1838307
CourtSupreme Court of Alabama
DecidedApril 25, 2008
Docket1041765
StatusPublished

This text of 993 So. 2d 868 (Welch v. Wachovia Bank, N.A.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welch v. Wachovia Bank, N.A., 993 So. 2d 868, 2008 Ala. LEXIS 84, 2008 WL 1838307 (Ala. 2008).

Opinion

PARKER, Justice.

Manford Welch and his wife, Ann Welch, appeal from a judgment against them in the amount of $152,691.63 plus costs in the underlying contract action, into which they were joined after a summary judgment [869]*869had been entered against the original defendants. They also challenge the denial of their motion for a change of venue and the dismissal of their counterclaim alleging fraud. We affirm.

Background

The trial court provided a summary of the action in its July 8, 2005, order entering judgment against the Welches:

“The matter before the Court is SouthTrust Bank’s complaint to collect monies owed under a promissory note in default. This matter was heard ore ten-us....
“On October 1, 1993 SouthTrust Bank (now Wachovia Bank) loaned Barry’s Foodmart[s], Inc.,
“The defendants (Welches) argue that there was fraud in the inducement or an innocent misrepresentation. Manford Welch testified that he did not know the extent of what he was signing and thought that only a $10,000.00 certificate of deposit was at risk. However, neither Defendant bothered to turn the document over and read it in its entirety. In fact, Barry Langham, the son-in-law, presented the guaranty agreement to the Welches for their signatures. No representations were made by the bank, nor did the bank ever have any contact with the Welches. Subsequently, the Defendants Barry’s Foodmart[s], Inc., and the Langhams executed a document titled change in terms of agreement on May 15, 2002 which extended the maturity date to May 15, 2007. The principal amount owed at that time was $129,358.30. Barry’s Foodmart[s] and the Langhams subsequently defaulted on the note. The balance due as of July 6, 2005 was $152,691.63 and increases $28.20 every subsequent day thereafter.
“The Welches have a duty to read the document and to inquire as to its contents. They cannot derive benefit from its execution and avoid the risks when their family defaults on the note. In this regard see First National Bank of Mobile v. Horner, 494 So.2d 419 (Ala.1986), and Boland v. Fort Rucker National Bank, 599 So.2d 595 (Ala.1992).
“Based on the foregoing it is Ordered, Adjudged and Decreed that judgment be entered in favor of SouthTrust Bank/Wachovia Bank and against [the Welches] in the amount of $152,691.63 plus cost of court.”

The loan was a Small Business Administration loan that Barry Langham solicited for Barry’s Foodmarts, Inc., from South-Trust Bank of Dothan (now Wachovia Bank, N.A.).2 The loan request was approved on July 8, 1993, but Paul Gressman of SouthTrust told Barry Langham that the bank needed additional collateral up front. Welches’ brief at 6. Barry Lang-ham and his wife, Sherry Langham, went to Sherry’s parents, the Welches, who agreed to assign their $10,000 certifícate of [870]*870deposit held with the First Alabama Bank (now Regions Bank) as security for the loan. They assigned the account on September 23, 1993, and First Alabama issued an irrevocable letter of credit in favor of SouthTrust for the account of “Barry’s Food Mart, Inc.,” on the same day.

On or about October 1, 1993, the Lang-hams met with Gressman at a Hardee’s fast-food restaurant in Dothan after regular banking hours. What follows is Wa-chovia’s version of what transpired at that meeting and thereafter to result in the execution of the guaranty:

“At that time, Mr. Gressman handed Mr. Langham the Guaranty and said, ‘Sign this and I’ve got all the information from Regions — from First Alabama about the [certificate of deposit], just get them to sign it and I’ll fill it out, and that will be it.’ Mr. Gressman further stated, ‘[the Guaranty] was for their records for the [certificate of deposit], you know, for the [Small Business Administration] or whatever.... ’ Mr. Langham took the Guaranty to the Welches’ home where he told the Welches what Mr. Gressman had said about the Guaranty. Then, he laid the Guaranty down with the signature line up, and said, ‘[T]hat man from that Small Business said all you’ve got to do is sign, and you ain’t got to look at nothing.’ Mr. Langham further told the Welches, ‘[M]y bank needs this signed for their files, just stating that you’ve have signed the [certificate of deposit] over.’ The Welches executed the Guaranty.”

Wachovia’s brief at 3 (citations to the record omitted).

The guaranty agreement is printed on both sides and required execution on the reverse. The Welches assert that “Gress-man had only filled in SouthTrust Bank of Dothan for ‘Lender’ and Barry’s Food-mart[s], Inc. as ‘Debtor.’ The rest of the document was blank.... The principal amount of the loan and the interest rate were not written in the document.” Welches’ brief at 8.

On May 15, 2002, the Langhams and Wachovia executed a document titled “Change in Terms Agreement” extending the term of the loan and changing the variable interest rate to a fixed rate.

The Langhams defaulted on the loan, and Wachovia Bank, on May 1, 2003, sued for the balance due. Wachovia moved for a summary judgment, and the court set a hearing for August 11, 2003. When only Wachovia appeared for the hearing, the court entered an order stating that Wacho-via’s summary-judgment motion was due to be granted and directing Wachovia to submit a draft summary-judgment order within 10 days. The same day, Wachovia submitted a motion to amend the complaint to join the Welches as defendants. The trial court granted the motion on August 19, 2003, and on August 21, 2003, the trial court entered a summary judgment in favor of Wachovia and against Barry’s Foodmarts, Inc., Barry Langham, and Sherry Langham. Wachovia amended the complaint to join the Welches on August 20, 2003, and moved the court on September 29, 2003, for authority to serve the Welches by certified mail.

On October 31, 2003, Barry Langham’s attorney filed a notice with the trial court stating that Barry Langham and Barry’s Foodmarts, Inc., had filed a petition in bankruptcy under Chapter 7 of the Bankruptcy Code.

The Welches, on November 17, 2003, filed a motion either to transfer the case from the Houston Circuit Court to the Baldwin Circuit Court or to dismiss the case without prejudice for lack of venue. They argued that the complaint arises out of contract and cited § 6-3-2(a)(2), Ala. [871]*871Code 1975, which provides that “[a]ll actions on contracts ... must be commenced in the county in which the defendant or one of the defendants resides.” Because all the individual defendants named in the complaint are residents of Baldwin County and because Barry’s Foodmarts, Inc., does business only in Escambia and Baldwin Counties, venue in Houston County, they argued, was improper.

Wachovia responded, arguing that the Langhams and Barry’s Foodmarts, Inc., had waived the issue of venue by answering the complaint and not raising the defense of improper venue. It cited Rule 82(c), Ala. R. Civ.

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

Related

First Nat. Bank of Mobile v. Horner
494 So. 2d 419 (Supreme Court of Alabama, 1986)
Williams v. Bank of Oxford
523 So. 2d 367 (Supreme Court of Alabama, 1988)
Ingram v. Omelet Shoppe, Inc.
388 So. 2d 190 (Supreme Court of Alabama, 1980)
Ex Parte Nelson
448 So. 2d 339 (Supreme Court of Alabama, 1984)
Ex Parte Pratt
815 So. 2d 532 (Supreme Court of Alabama, 2001)
Ex Parte Canady
563 So. 2d 1024 (Supreme Court of Alabama, 1990)
Ex Parte Perfection Siding, Inc.
882 So. 2d 307 (Supreme Court of Alabama, 2003)
Ex Parte Flexible Products Co.
915 So. 2d 34 (Supreme Court of Alabama, 2005)
Medical Service Administration v. Dickerson
362 So. 2d 906 (Supreme Court of Alabama, 1978)
Ex Parte Ambrose
813 So. 2d 806 (Supreme Court of Alabama, 2001)
Johnson Publishing Co. v. Davis
124 So. 2d 441 (Supreme Court of Alabama, 1960)
Unum Life Ins. Co. of America v. Wright
897 So. 2d 1059 (Supreme Court of Alabama, 2004)
Zickler v. Shultz
603 So. 2d 916 (Supreme Court of Alabama, 1992)
Boland v. Fort Rucker Nat. Bank
599 So. 2d 595 (Supreme Court of Alabama, 1992)
Premiere Chevrolet, Inc. v. Headrick
748 So. 2d 891 (Supreme Court of Alabama, 1999)
Ex Parte Central of Georgia Ry. Co.
10 So. 2d 746 (Supreme Court of Alabama, 1942)

Cite This Page — Counsel Stack

Bluebook (online)
993 So. 2d 868, 2008 Ala. LEXIS 84, 2008 WL 1838307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welch-v-wachovia-bank-na-ala-2008.