First National Bank v. Appalachian Industries, Inc.
First National Bank v. Appalachian Industries, Inc.
Opinion of the Court
The appellee, Appalachian Industries, Inc., sued the appellant First National Bank of Gainesville, Georgia, to recover actual and punitive damages for breach of contract for First National’s allegedly wrongful acceleration and collection of a loan. The trial judge decided several of the legal issues in the case in favor of Appalachian on motion for summary judgment, leaving
The note, dated April 17,1975, was for $925,000 and was secured by the grant of various security interests in real estate, inventory, equipment, and accounts receivable. It was repayable in monthly installments over a ten-year period. The acknowledged purpose of the loan was to enable Appalachian to meet certain payroll and trade debt obligations following a period of substantial operating losses.
Within a few months after the loan was made, First National became concerned over Appalachian’s ability to weather its financial crisis. It communicated this concern to Appalachian, which agreed to liquidate two of its operating divisions and apply the proceeds to the note. Consequently, by early December of 1975, advance payments of approximately $250,000 had been made on the loan.
On December 18, 1975, First National served Appalachian with a written notice that it had accelerated the loan and that it intended to collect statutory attorney fees if the balance of $662,840 were not paid within ten days. Simultaneously, the bank offset Appalachian’s checking account deposits against the accelerated indebtedness and began to retain all of the income from Appalachian’s accounts receivable, which the bank had already begun to collect under the terms of the security agreement.
First National contends that it was authorized to declare a default and to accelerate the note for two reasons. First, because of a provision that the bank could declare a default in the event that the debtor "becomes insolvent or is unable to pay his debts as they mature ...” and, second, because Appalachian missed a $12,700 installment which was due on December 17, 1975. Appalachian, on the other hand, contends that it was not insolvent and that the note was prepaid by almost $250,000 at the time of acceleration.
Error is enumerated on five of the trial court’s rulings disposing of the parties’ cross motions for
1. The trial court correctly ruled that Appalachian’s readily saleable assets and credit capacity were factors to be considered by the jury in determining whether the company was "insolvent or unable to pay its debts as they matured” so as to authorize acceleration, notwithstanding First National’s contention that this determination should be based on "cash flow” alone. Inability to pay one’s debts as they mature, the traditional equity test of insolvency, has often been interpreted to include an inquiry into the debtor’s saleable assets or credit-worthiness as potential sources of payment. See United States v. Anderson, 119 F2d 343, 346 (7th Cir. 1941); In re Corcoran Irrigation District, 27 FSupp. 322 (S.D. Cal. 1939); Larrimer v. Feeney, 411 Pa. 604 (192 A2d 351, 353) (1963); 1 Collier on Bankruptcy, ¶ 1.19 (14th Ed. 1968), pp. 97-106. In the case before us now, the loan was made for the express purpose of allowing Appalachian to meet its operating expenses in the face of substantial operating losses. It would therefore be totally incongruous to construe the note as allowing a declaration of default based on a mere "cash flow” deficit. Furthermore, any ambiguity in the meaning of the term "insolvency” as used in the loan documents must be construed most strongly against First National since it prepared the documents. See, e.g., Howkins v. Atlanta Baggage &c. Co., 107 Ga. App. 38 (1) (129 SE2d 158) (1962); Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662 (3) (197 SE2d 749) (1973).
2. We also sustain the trial court’s ruling that as a matter of law Appalachian’s failure to make the $12,700 installment due on December 17, 1975, was not an act of default, since the loan had been prepaid by substantially more than that amount as of that date. First National’s contention that a default did result is based on the rule that, in the absence of an agreement to the contrary, prepayments on a loan must first be applied to interest due and owing at the time they are made and then to principal. See generally Code § 57-109; Massell Realty Co. v. Chamberlin, 47 Ga. App. 718 (1) (171 SE 311) (1933). It argues that if the prepayments are applied in this fashion, then Appalachian would at least be in default for that
3. The trial court was also correct in ruling as a matter of law that First National had no right to set off the income from Appalachian’s receivables against any portion of the indebtedness which had not yét matured. Although the security agreement authorized the bank to collect Appalachian’s receivables "for application on the indebtedness hereby secured” and although Code Ann. § 109A-9 — 502 authorizes such an agreement, we do not construe the term "indebtedness” as used in that Code section to include the unmatured balance of the loan. Such a construction would effectively permit acceleration of the indebtedness without default and at the whim of the lender, at least to the extent of the receivables. This in turn would give the lender the power to deprive a company of its operating revenues at any time, without notice or explanation. Under the UCC, even a provision in a note allowing the lender to accelerate "at will” or "when he deems himself insecure” offers a debtor more protection than that, since such language is at least subject to requirements of good faith under Code Ann. § 109A-1 — 208. We accordingly hold that in the event the acceleration of the note is eventually determined to have been improper, then the bank was not authorized to retain any income from the accounts receivable in excess of the amount actually required to keep the installments current. See Code Ann. § 109A-9 — 502 (2).
5. The trial court did not err in ruling there was no evidence that an accord and satisfaction had taken place with respect to Appalachian’s claim and in granting summary judgment to Appalachian on this issue. First National asserted the defense of accord and satisfaction on the basis of an alleged agreement between the parties following the acceleration of the note, whereby First National agreed to waive statutory attorney fees in collecting the note and to make certain additional advances to Appalachian in return for Appalachian’s cooperation in pursuing an orderly liquidation of its assets and a prompt payment of the indebtedness. First National contends that implied in this alleged agreement was a waiver by Appalachian of all claims against the bank arising out of the latter’s acceleration and collection of the note.
We cannot agree. There is no indication in the record
Judgment affirmed in part and reversed in part.
070rehearing
On Motion for Rehearing.
First National urges us to reconsider the case of Wilder v. Federal Land Bank of Columbia, 185 Ga. 837 (196 SE 708) (1924) on the issue of whether the prepayments made on the loan relieved Appalachian of its duty to meet the December installment payment. In
In this case, there are no circumstances indicating any agreement or assent by the debtor that the prepayments be applied solely to principal. Therefore, we have not deemed Wilder to be controlling on the issue.
Motion for rehearing denied.
Reference
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- First National Bank of Gainesville v. Appalachian Industries, Inc.
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