Fairways Living, Inc. v. North Denver Bank
| Decision Date | 14 April 1969 |
| Docket Number | 22485,Nos. 22197,s. 22197 |
| Citation | 453 P.2d 190,169 Colo. 23 |
| Parties | FAIRWAYS LIVING, INC., a Colorado corporation, Leonard Loukonen and Reino Loukonen, as individuals, Plaintiffs in Error, v. NORTH DENVER BANK and the Colorado National Bank of Denver, Defendants in Error. |
| Court | Colorado Supreme Court |
Clayton W. Bell, Boulder, for plaintiffs in error.
Robinson, Tilton & Robinson, William Hedges Robinson, Jr., Denver, for defendants in error.
Two writs of error are consolidated herein, Supreme Court Nos. 22197 and 22485. They were sued out to separate judgments entered in an action brought in the Boulder district court by North Denver Bank and The Colorado National Bank of Denver against Fairways Living, Inc. and Leonard Loukonen and Reino Loukonen as individuals. We will refer to the parties by name or as they appeared in the court below.
Some of the facts are not disputed. On July 19, 1963, Frank E. Eckel and the Loukonen brothers as officers of Fairways Living, Inc. and in their individual capacities executed a promissory note in the sum of $271,000 payable to North Denver Bank and due in full one year from date. The indebtedness was secured by deed of trust on certain property in Boulder County intended to be developed as a country club. A portion of the note was before maturity assigned to The Colorado National Bank.
The purpose of the loan was to finance the construction of an 18-hole golf course, a club house and a water storage reservoir. Defendants obtained the construction loan on the basis of a permanent loan commitment from Capitol Federal Savings in Denver. For reasons not important here the permanent loan was not obtained, and the defendants were unable to pay the note when it became due.
On November 16, 1965, North Denver Bank and The Colorado National Bank sought foreclosure of the deed of trust. A third party action and counterclaim were filed by the defendants. On the basis of undisputed evidence and the admission of defendants in depositions introduced into evidence, the court entered summary judgment on the suit for foreclosure, ordered the sale of the property, and reserved the other issues in the controversy between the parties for later consideration. The propriety of the summary judgment, the order permitting the foreclosure and sale of the property, is challenged in the writ of error, Supreme Court No. 22197.
On January 21, 1966, four days prior to the scheduled sale of the property by the Public Trustee, trial to the court was had on all of the controverted issues between the parties consisting primarily of the counterclaim against the plaintiffs in which it was contended that there was failure of consideration for the note and that the bank was negligent in the disbursement of the construction loan funds. Judgment was entered in favor of the bank on the promissory note. The counterclaim which was asserted as an off-set was found by the court to be without merit and was dismissed. The court also reaffirmed the summary judgment as to the foreclosure. Writ of error, Supreme Court No. 22485, is directed to the court's judgment on issues in the trial.
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