First Nat. Park Bank v. Johnson, s. 75-1354

• Decision Date: 07 April 1977
• Docket Number: 75-1413 and 75-3303,Nos. 75-1354,s. 75-1354
• Citation: 553 F.2d 599
• Parties: 21 UCC Rep.Serv. 702 FIRST NATIONAL PARK BANK, Plaintiff-Appellee, v. Snellen M. JOHNSON and Ven Savage, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 599

553 F.2d 599

21 UCC Rep.Serv. 702

FIRST NATIONAL PARK BANK, Plaintiff-Appellee, v. Snellen M. JOHNSON and Ven Savage, Defendants-Appellants.

Nos. 75-1354, 75-1413 and 75-3303.

United States Court of Appeals, Ninth Circuit.

April 7, 1977.

Rehearing Denied May 10, 1977.

William D. Murray, Jr., McCaffery & Peterson, Butte, Mont., for defendants-appellants.

Lorin N. Pace, Salt Lake City, Utah, Arthur P. Acher, Rankin & Acher, Helena, Mont., submitted on briefs, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before CHOY and KENNEDY, Circuit Judges, and PREGERSON, ^* District Judge.

KENNEDY, Circuit Judge:

First National Park Bank (the bank) brought an action against Johnson and Savage as guarantors of a loan made to Great Western Ranches, a Utah corporation (the Utah corporation). The action was brought in the District of Montana. Jurisdiction exists by reason of diversity of citizenship, and the law of Montana controls the substantive questions presented.

Between January 21, 1969 and July 23, 1969, the bank financed the purchases of three airplanes by the Utah corporation. Each of the three loans was secured by the airplanes. On July 23, 1969, the date on which the third airplane was financed, Johnson and Savage (the guarantors), officers of the Utah corporation, personally guaranteed repayment of the Utah corporation's three bank loans. On August 12, 1969, a Nevada corporation took over all the assets of the Utah corporation. Apparently, the Nevada corporation did not assume the Utah corporation's debts to the bank.

The payments due to the bank became delinquent as early as October 1969. Some time thereafter, the bank repossessed the airplanes. In August 1970, the Nevada corporation filed a proceeding under Chapter X of the Bankruptcy Act. The bank applied to the bankruptcy court to modify a restraining order so that the bank could pursue its remedies with respect to the airplanes. The bank's application was granted, and the bank resold the airplanes at private sales, with a resulting deficiency of $68,661.78 plus interest.

The bank filed a claim in the Chapter X proceeding, seeking to recover the deficiency from the Nevada corporation. The claim was denied. The bank then brought the instant action against the guarantors to recover the deficiency. The district court denied the guarantors' motion for summary judgment and entered summary judgment in favor of the bank. The guarantors appeal. The bank cross appeals from the trial court's refusal to grant an award of attorneys' fees against the guarantors. We affirm in all respects.

Appeal by the Guarantors

On appeal, the guarantors contend that the bank's failure to notify the debtor that the collateral would be sold bars recovery of the deficiency from the guarantors. For the purpose of determining the correctness of summary judgment in this case, we assume that the bank did not comply with the notice provisions of Mont.Rev.Codes Ann. § 87A-9-504(3) (Uniform Commercial Code (UCC) § 9-504(3)). ¹

A substantial number of jurisdictions have addressed the question whether a creditor who has failed to comply with the notice provisions of UCC § 9-504(3) may recover a deficiency judgment from the debtor. Some courts have barred a deficiency judgment altogether. See United States v. Whitehouse Plastics, 501 F.2d 692, 695 n.3 (5th Cir. 1974) and cases cited therein. Others have held that failure to give notice does not bar a deficiency judgment, but the value of the collateral is presumed to equal the amount of the debt, and the burden is on the secured creditor to establish that the collateral is worth less than that amount. Id. n.4 and cases cited therein. We have found no Montana cases specifically addressing this issue. Even assuming, however, that the Montana courts would bar a deficiency judgment against a principal debtor who had not received notice, it does not necessarily follow that the Montana courts would interpret Mont.Rev.Codes Ann. § 87A-9-504(3) as requiring the same result in a suit against a guarantor, whose rights are not expressly governed by article 9 of the UCC.

The policies underlying UCC § 9-504(3) would seem to require that the guarantor have a defense to a deficiency claim where the secured party fails to give the principal debtor statutory notice of the sale. This follows from the obligation of a principal debtor to reimburse his guarantor for any amount that the guarantor is required to pay on the guaranteed indebtedness: Were the guarantor not afforded such a defense, then, after paying a judgment for a deficiency, he could recover from the principal debtor the amount of that judgment. Mutual Finance Co. v. Politzer, 21 Ohio St.2d 177, 256 N.E.2d 606, 610 (1970). Accord, Weinstein v. United States, 511 F.2d 56, 59 (6th Cir. 1975).

We therefore assume that lack of notice to the debtor may be a defense that is available to the guarantor in a suit brought by the secured party. The question here is whether the guarantor waived that defense by signing the guaranty agreement and if so whether the UCC prohibits such a waiver. The district court correctly found that the guarantors had waived their right to rely on lack of notice as a defense. The guaranty agreement unambiguously contains such a waiver, in accordance with which the bank could sell or release the collateral without notice to the guarantors and without affecting their absolute liability. ² Such language is sufficient to constitute a waiver of any right to notice the guarantors may have had. See Weinstein v. United States, 511 F.2d at 60. We therefore hold that the bank's failure to give notice to the debtor was a defense waived by the guarantors in this case.

The guarantors nevertheless contend that even though the guaranty agreement contained a waiver, waiver of notice under UCC § 9-504(3) is specifically barred by Mont.Rev.Codes Ann. § 87A-9-501(3), UCC § 9-501(3). ³ We disagree. First, section 9-501(3) applies only to "debtors"; the guarantors are not debtors within the meaning of that section. Cf. EAC Credit Corp. v. King, 507 F.2d 1232, 1238 (5th Cir. 1975). But see Rushton v. Shea, 423 F.Supp. 468, 470 (D.Del.1976). Section 9-501(3), therefore does not by its terms mandate a holding that a guarantor is precluded by UCC § 9-501(3) from waiving a defense of lack of notice to the debtor.

Second, the policies of the UCC notice provisions do not require that we apply, by implication, the nonwaiver statute to a guarantor. Where both the principal debtor and the guarantor had or would have had a valid defense against payment, but the voluntary conduct of the guarantor amounts to a waiver of that defense by the guarantor, the latter may not obtain reimbursement from the principal. Mutual Finance Corp. v. Politzer, 256 N.E.2d at 612, citing 38 C.J.S. Guaranty § 111 at 1299. A holding that the guarantors waived the creditor's failure to give notice will not deprive the principal debtor of the protections of section 9-504(3). The district court here properly held that the bank's action for a deficiency was not barred by the UCC.

The guarantors contend that, apart from the provisions of the UCC, the bank's failure to give notice to the debtor impaired their right to proceed against the collateral and their rights of subrogation, thereby discharging them from liability for the deficiency. The guaranty in this case, however, is absolute and unconditional. The guarantors agreed to subject themselves to absolute liability for the obligation. Indeed, the guaranty agreement contained an express waiver of any right to notice the guarantors may have had. Where a guaranty is unconditional, a creditor, at least absent willful or grossly negligent...