Westbrook State Bank v. Anderson Land & Cattle Co.

364 N.W.2d 416, 1985 Minn. App. LEXIS 3921
CourtCourt of Appeals of Minnesota
DecidedMarch 5, 1985
DocketC8-84-1518
StatusPublished
Cited by3 cases

This text of 364 N.W.2d 416 (Westbrook State Bank v. Anderson Land & Cattle Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westbrook State Bank v. Anderson Land & Cattle Co., 364 N.W.2d 416, 1985 Minn. App. LEXIS 3921 (Mich. Ct. App. 1985).

Opinion

OPINION

POPOVICH, Chief Judge.

Respondents Westbrook State Bank and Northwestern State Bank of Tracy, now known as Norwest Bank Tracy, commenced foreclosure on two mortgages on real property in Cottonwood County, Minnesota. The trial court determined the mortgages were valid, in default, and respondents were entitled to foreclose. Appellant moved for a new trial claiming the trial court: (1) erred in concluding the mortgages were supported by adequate consideration; (2) erred in denying appellant’s request for a continuance of the new trial motion hearing; (3) erred in denying appellant’s request for a continuance of the trial; and (4) erred in determining that the respondents did not fail to join an indispensable party to the foreclosure action. We affirm.

FACTS

In May 1981 Anderson Land & Cattle Company owned real property. Frances Anderson, president, signed a promissory note with Norwest for $225,000 and another promissory note with Westbrook for $125,000 included in a combined mortgage to the banks. The banks restructured and consolidated the cattle company’s debts advancing funds to pay debts, including a mortgage held by the Federal Land Bank.

In May 1981, Anderson executed a second mortgage of $140,000 to Westbrook to secure an earlier $170,000 promissory note dated November 17, 1980. The company disposed of the collateral for the earlier promissory note by selling 400 cattle and using the proceeds for general operating expenses. Westbrook told Anderson to replace the depleted collateral or Westbrook would call the note.

After recording the two mortgages, the property was conveyed to St. Onge Associates, Inc. by warranty deed. In 1982, St. Onge Associates conveyed the property to Darrell J. Nicholson by quit claim deed. Darrell J. Nicholson and Elaine Nicholson conveyed the property by contract for deed *418 to L. Schram, Duane Anderson, James Anderson, Tim Carlson, and SL & C Partnership.

In April 1982, a meeting was held to transfer the property to appellant, SL & C Partnership. Westbrook and Norwest received interest payments on the mortgages. The company also executed loan extension agreements with the banks which provided for interest installments and an extension to pay principal. Anderson defaulted on the extension agreements.

In May 1983, Westbrook commenced foreclosure on the second mortgage. Nor-west cross-claimed and commenced foreclosure on the first mortgage, the participation mortgage between Norwest and West-brook. All named defendants defaulted except appellant.

Appellant’s counsel withdrew in December 1983. At that time, trial was set for May 1984. On May 26, 1984, Westbrook’s counsel received appellant’s notice of a motion set for May 29, 1984 requesting continuance of trial so appellant could obtain legal counsel. Appellant’s motion was denied on May 29, 1984 and again on May 30, 1984. Appellant proceeded to trial without counsel, represented by Robert Wardin, the majority and controlling partner in the SL & C Partnership.

The trial court determined the mortgages were valid, in default, and respondents were entitled to foreclose. After trial appellant obtained counsel and moved for a new trial. By order dated July 27, 1984, the trial court denied the motion.

ISSUES

1. Was there sufficient evidence to support the trial court’s finding of adequate consideration for the mortgages given to Norwest and Westbrook?

2. Did the trial court abuse its discretion in denying appellant’s request for a continuance of the hearing on the motion for a new trial?

3. Did the trial court abuse its discretion in denying appellant’s request for a continuance of the trial?

4.Did respondents fail to join an indispensable party to the action?

ANALYSIS

I.

In Markoe v. Naiditch and Sons, 303 Minn. 6, 226 N.W.2d 289 (1975), the supreme court said:

When an action is tried by the court without a jury, its findings will not be reversed on appeal unless they are clearly erroneous.

Id. at 8, 226 N.W.2d at 291; see also Minn. R.Civ.P. 52.01. The trial court found the property was subject to two valid mortgages.

Appellant alleges the mortgages are invalid for lack of consideration citing Baker v. Citizens State Bank of St. Louis Park, 349 N.W.2d 552 (Minn.1984). In Baker, the evidence indicated a bank promised to forbear calling the outstanding debts of the company if the sole shareholder signed a second mortgage on his farm. The Minnesota Supreme Court determined: (1) a preexisting debt of a corporation is insufficient consideration to support a mortgage and loan guarantee pledged by a third-party guarantor; and (2) the second mortgage on the farm was void for failure of consideration because the length of forbearance from calling in the notes, seven days, was unreasonable.

The trial judge found that “forbearance from calling these notes for either two or five days is clearly an unreasonably short length of time.” There are no cases in Minnesota addressing what is a reasonable time in the case of a bank’s forbearance from calling a debt. But in Sheraton Service Corp. v. Kanavos, 4 Mass.App. 851, 357 N.E.2d 20 (1976), 6 months was regarded as reasonable and in Matter of Slodov, 419 F.Supp. 64 (N.D.Ohio 1976), a timespan from late February to late summer of the same year was also held to be reasonable. It is clear, however, that the 7 days between the 16th and the 23rd was unreasonable. The purpose of bargaining for *419 forbearance is to attempt to find a means to pay the outstanding debts. In this case, there was proof that the bank agreed to allow Baker time to reorganize his corporation and reducé it to a manageable size. This obviously could not be accomplished in 7 days. We hold that the second mortgage on the Bakers’ Min-netrista farm is void for failure of consideration.

Id. at 558.

Although the Baker court found the bank’s forbearance was unreasonable, the court implied that a creditor’s reasonable forbearance from exercising a legal right may be adequate consideration. Id. at 558-59.

The trial court’s order for judgment memoranda was made a part of the order and summarized the consideration for the mortgages as follows:

The evidence discloses adequate consideration for the mortgages. The mortgages were given to secure preexisting debt and the forbearance of the plaintiffs which continued nearly two years. At the time of the execution of the mortgages herein the mortgagors were deeply in debt to plaintiffs and were in default. In consideration of plaintiff’s forbearance to sue and to restructure that debt, the new mortgages were issued.

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

Related

Brooksbank v. Anderson
586 N.W.2d 789 (Court of Appeals of Minnesota, 1998)
In Re the Alleged Chemically Dependent Galusha
372 N.W.2d 843 (Court of Appeals of Minnesota, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
364 N.W.2d 416, 1985 Minn. App. LEXIS 3921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westbrook-state-bank-v-anderson-land-cattle-co-minnctapp-1985.