Robinson v. First Sec. Bank of Big Timber
| Decision Date | 20 November 1986 |
| Docket Number | No. 86-261,86-261 |
| Citation | 728 P.2d 428,224 Mont. 138 |
| Parties | James ROBINSON and Lorraine Robinson, Plaintiffs and Appellants, v. FIRST SECURITY BANK OF BIG TIMBER, Montana, and Leonard Brien, Defendants and Respondents. |
| Court | Montana Supreme Court |
John Houtz, Forsyth, for plaintiffs and appellants.
Landoe, Brown, Planalp, Kommers & Johnstone, Gene I. Brown, Bozeman, for defendants and respondents.
This is an appeal from the summary judgment entered in favor of defendant bank by the District Court of the Sixth Judicial District, Sweet Grass County. Plaintiff appeals. We affirm.
There is one issue in this case: Did the District Court err in granting summary judgment?
Appellants and Leonard K. Brien and Venetta F. Brien were partners in the purchase and operation of the Grand Hotel and Bar in Big Timber. First Security Bank of Big Timber loaned the Grand Hotel $35,000 on the personal guarantees of the Briens and the appellants. The Bank also made several other loans for operation of the Grand Hotel, and loans to Leonard Brien and appellants for an outside real estate venture. Appellants initially disputed some of these loans saying they were made to Briens personally. In April, 1982, the appellants and Briens were in default on the loan of $68,942.90 having failed to make payments for the prior 16 months. Appellants and Briens signed a new note for $72,942.90 (including $4,000 new money and a renewal of the existing obligation). The new note was secured by a mortgage on the Grand Hotel property. In May, 1982, an additional $6,500 was loaned for expenses. In October, 1982, the Bank filed a foreclosure action on the Grand Hotel property. In December, 1982, the Bank, appellants, and the Briens entered into an agreement. The appellants and the Briens were represented by counsel. The Bank agreed to stay the foreclosure proceedings for six months and reduce the interest rate on outstanding obligations to 10% per annum effective September, 1982. The appellants and Briens agreed that the sum of $96,865.35 was "properly due and owing" to the Bank by them and that the debt was secured by a mortgage on the Grand Hotel property. They agreed:
The [appellants and Briens] hereby irrevocably consent to entry by the court of judgment in favor of the [Bank] and against [them] in the foregoing amounts....
The agreement further provided:
7. It is contemplated that near the end of the extension period, the parties may agree to a sale of the premises at private auction upon terms and conditions to be agreed upon between the parties. In the event that the terms of such a sale can be agreed upon by the parties, [appellants and Briens] shall execute a deed to the purchaser at such sale, free and clear of any right of redemption in [them], and consent to entry of a deficiency judgment in favor of the [Bank] and against [them] in the amount of the difference between the amounts owing to the [Bank] and the net proceeds of sale after expenses of sale, payment of the underlying obligation and any other amounts that may be required to be paid in order to convey good title to purchaser. In the event the parties are unable to agree, the property shall be sold at Sheriff's sale as provided in the law, and the purchaser [sic] shall be liable for any deficiency.
The Grand Hotel and Bar property was sold and appellants signed a note for the $19,000 deficiency.
In May, 1985, appellants filed this action alleging the Bank was negligent in loaning money to the Briens, and in not advising Robinsons they would be held responsible for the money loaned to the Briens, and initiating a foreclosure proceeding. Robinsons argue that even if the consent agreement is valid, summary judgment should not have been granted because of the Bank's actions subsequent to the agreement, including the Bank's involvement in attempted sales and lease and later foreclosure. They contend their signature on the consent agreement was involuntary and obtained by duress. They contend the agreement is a fraud because it is not an accurate reflection of the money owed by the Robinsons. They contend the Bank should be...
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Taggart v. Rutledge
...been raised therein as a compulsory counterclaim. 712 P.2d at 1329. A similar result was reached in Robinson v. First Security Bank of Big Timber, ___ Mont. ___, 728 P.2d 428 (1986), in which a 1982 consent judgment was held to preclude the plaintiffs' subsequent complaint which should have......
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O'Bagy v. First Interstate Bank of Missoula, 89-188
...Inc. (Mont.1988), 760 P.2d 57, 45 St.Rep. 1344; Smith v. Howrey (1987), 227 Mont. 284, 738 P.2d 502; Robinson v. First Sec. Bank of Big Timber (1986), 224 Mont. 138, 728 P.2d 428; Rowland v. Klies (1986), 223 Mont. 360, 726 P.2d 310. Summary disposition of claims is proper when no genuine i......
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Springs v. First Nat. Bank of Cut Bank
...indenture was executed. Thus, Springs' claim matured prior to the Bank's foreclosure action. See, e.g., Robinson v. First Security Bank of Big Timber, 728 P.2d 428, 430 (Mont.1986). Furthermore, it has been said that "[a] counterclaim is not barred because recovery will depend on the outcom......
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...agreement, when the basis for a final judgment, bars all preexisting claims and causes of action. Robinson v. First Security Bank of Big Timber (1986), 224 Mont. 138, 141, 728 P.2d 428, 430. By signing the stipulation, Yetter waived any further claims of breach of contract occurring prior t......