Northern National Bank v. Goodwin (In re McBreairty)
Northern National Bank v. Goodwin (In re McBreairty)
Opinion of the Court
MEMORANDUM OPINION
Requesting relief from the automatic stay in force from the filing of the debtors’ voluntary chapter 7 petition, plaintiff seeks to foreclose valid mortgages on real property of the debtors and to reclaim personal property subject to a valid security interest.
On the strength of their promissory note and a first real estate mortgage the debtors borrowed $35,000 from the plaintiff with which to construct a dwelling house. Later, Orin McBreairty applied for additional financing with which to enlarge and complete the structure. A second mortgage on the same real estate was “given subject to [the] first real estate mortgage.. . . ” It contained a future advance clause limiting the total indebtedness protected by the lien of the second mortgage to “any and all sums not exceeding the sum of Forty Thousand Dollars ($40,000.00) which we may at this time or at any future time until this Mortgage shall be discharged, owe to Grantee.” The debtors recognize the validity of future advance clauses under Maine law, see Bunker v. Barron, 93 Me. 87, 44 A. 372 (1899);
The issue turns upon the intent of the parties as gleaned from the documents and the prevailing circumstances. Gosselin v. Better Homes, Inc., Me., 256 A.2d 629, 637-38 (1969). On January 22, 1979, Orin McBreairty submitted to the plaintiff an application to “increase open end mtge. to $70,000.”
The court is satisfied under all of the circumstances, see id., that the first and second mortgage agreements represented separate and cumulative undertakings intended to secure total indebtedness not exceeding $75,000. The parties plainly intended that two of the advances made on March 5, 1980 come under the protection of the second mortgage.
All remaining issues considered by counsel relate to the enforceability of the real estate mortgage liens and a security interest in personal property as against third persons, whose rights are not vested in the debtors but in their trustee in bankruptcy.
The court adopts this Memorandum Opinion as its findings of fact and conclusions of law.
. Plaintiff brought these adversary proceedings against the debtors and their trustee in bankruptcy. The trustee in bankruptcy failed to appear or otherwise defend and has been defaulted.
. In addition to the $35,000 loaned under the first mortgage, plaintiff later loaned the debtors another $58,666.37.
. See Plaintiff’s Exhibit # 4. (Emphasis added.) The only fair reading of the quoted language is that future advances over and above those covered by the first mortgage were to be protected by the same collateral.
. Elaine McBreairty guaranteed all of Orin McBreairty’s obligations to plaintiff.
. The italicized word “none” is typewritten, while the remaining language is part of the printed form.
. The future advance clause contradicts the collateralization provisions contained in the promissory notes dated December 5, 1979, February 22, 1980, and March 5, 1980 [$3,562.91]. See text accompanying notes 4 & 5 supra.
. See Smith v. Kerr, 130 Me. 433, 439, 157 A. 314 (1931).
. See Bankruptcy Code § 544, 11 U.S.C. § 544 (1979).
Reference
- Full Case Name
- In re Orin J. McBREAIRTY and Elaine McBreairty, d/b/a Mac's Carpentry & General Construction, Debtors. NORTHERN NATIONAL BANK v. THOMAS L. GOODWIN, Trustee, and Orin J. McBreairty and Elaine McBreairty, d/b/a Mac's Carpentry & General Construction
- Status
- Published