Paint Rock Properties v. Shewmake
| Decision Date | 29 January 1981 |
| Citation | 393 So.2d 982 |
| Parties | PAINT ROCK PROPERTIES, etc. v. C. Burrel SHEWMAKE et al. 79-711. |
| Court | Alabama Supreme Court |
Charles E. Richardson, III, of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
William T. Galloway, Jr., and John O. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
Paint Rock Properties appeals from a final judgment permanently enjoining it from accelerating payments and foreclosing a mortgage on account of the late remittance of the 1980 annual installment payment on a 23 March 1979 note secured by that mortgage. The mortgage was on 578 acres owned by plaintiffs C. Burrel Shewmake and Charlotte S. Shewmake. It secured a $69,000 note payable to Paint Rock Properties in 30 annual installments of $6,129.09 due on the 23rd of March each year. Both the note and mortgage contained an acceleration clause providing that, at the option of the payee, the entire remaining principal and interest would be immediately due and payable in the event of default in the payment of any installment of principal or interest.
Larry W. Alley and Jerry S. Gillespie were the original partners of Paint Rock Properties, the partnership to which the note was payable. Jerry S. Gillespie died on 2 March 1980, and on 20 March 1980 his brother Michael Gillespie was appointed executor of the last will and testament of Jerry S. Gillespie, deceased. 1
Claims in excess of $300,000 were filed against the estate. The estate, although solvent, was illiquid because there were not enough liquid assets or cash to meet its then current obligations.
The Shewmakes failed to make their first annual installment payment due on 23 March 1980. On 18 April 1980, they received a letter advising them that the status of Jerry S. Gillespie's financial affairs and obligations at his death required that action be taken by the partnership. The letter stated that the note was in default; the entire outstanding balance of principal and interest was immediately due and payable because the installment payment had not been received when due; and foreclosure will be effected by advertisement in the Huntsville Times. On 25 April 1980, Mr. Shewmake acknowledged failure to make the installment payment when due but stated that it was an oversight. He tendered a check representing two annual payments on the note and an additional $300 for legal and advertising expenses incurred by the mortgagees.
The partnership commenced foreclosure proceedings by publishing notice of foreclosure in the Huntsville Times. Substantial improvements had been made on the property by the Shewmakes during the year of their possession and Mr. Shewmake testified that it was now worth approximately five million dollars.
The Shewmakes petitioned the trial court to enjoin foreclosure of the mortgage on grounds that: (1) when notified of the delinquent payments they had tendered payments due on both 23 March 1980 and 23 March 1981 plus $300 as compensation for legal and advertising expenses; and (2) the foreclosure under the power of sale in the mortgage was being used against equity and good conscience for purposes other than merely to secure repayment of the debt. The trial court, on the basis of oral testimony and documentary evidence, permanently enjoined appellant partnership from instituting or continuing foreclosure proceedings in connection with the delinquent payment of the 23 March 1980 installment, and upon condition that plaintiffs Shewmakes promptly tendered one year's...
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In re Sharpe
...Sav. and Loan Ass'n, 607 So.2d 180, 182 (Ala.1992), citing Johnson v. Shirley, 539 So.2d 165, 168 (Ala. 1988); Paint Rock Properties v. Shewmake, 393 So.2d 982, 984 (Ala.1981). This cause of action is an equitable one typically brought against a mortgagee who goes outside the boundaries of ......
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Liberty Bank & Trust Co. v. Danley (In re Stacy L. Danley II Stephanie Danley)
...mortgagee had an ill motive."17 Id. at 152-53;see also Johnson v. Shirley, 539 So. 2d 165, 168 (Ala. 1988); Paint Rock Properties v. Shewmake, 393 So. 2d 982, 983-84 (Ala. 1981).B. Standard of Review Motions for summary judgment are governed by Rule 56(a), which requires a court to "grant s......
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...or will set it aside if made." ’ " Jackson v. Wells Fargo Bank, N.A., 90 So. 3d 168, 171 (Ala. 2012) (quoting Paint Rock Props. v. Shewmake, 393 So. 2d 982, 984 (Ala. 1981), quoting in turn Abel v. Fricks, 219 Ala. 619, 621, 123 So. 17, 18 (1929) )(emphasis added). See also First Nat'l Bank......
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Campbell v. Bank of Am., N.A.
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