State Sec. Sav. Co. v. Pelster
Decision Date | 12 September 1980 |
Docket Number | No. 42766,42766 |
Citation | 296 N.W.2d 702,207 Neb. 158 |
Parties | STATE SECURITY SAVINGS CO., a corporation, Appellant, v. Florian PELSTER and Joy Pelster, husband and wife, Appellees. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Evidence: Judicial Notice. A trial court in a proceeding between the same parties is entitled to take judicial notice of a security agreement attached to a previously dismissed petition between the same parties in the same court.
2. Secured Transactions: Acceleration Clauses. An acceleration provision in a security agreement securing a promissory note enters into and becomes a part of the note so that the maturity of the note is advanced in the same manner as the maturity of the security agreement.
3. Secured Transactions: Acceleration Clauses. Where the acceleration of the maturity of a security agreement and note is made optional with the holder of the security agreement, some affirmative action must be taken by the holder evidencing his election to take advantage of the acceleration provision, and until such action, the acceleration provision has no operation.
4. Secured Transactions: Acceleration Clauses. The exercise of the option to accelerate the maturity of a debt provided for in an acceleration clause must be made in a clear and unequivocal manner.
5. Secured Transactions: Acceleration Clauses: Notice. The option to implement an acceleration clause is effectively exercised by manifesting the fact in such a manner as to apprise the mortgagor of the mortgagee's intention.
Richard J. Butler of Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellant.
Vincent J. Kirby, Norfolk, for appellees.
Heard before McCOWN and WHITE, JJ., and COLWELL, KORTUM, and GRANT, District Judges.
This is an action to collect on an installment note in the amount of $90,691.86 executed by defendants Pelster in favor of plaintiff, State Security Savings Co., on November 19, 1969. Pursuant to the note, 83 monthly payments of $1,601.61 were to be made beginning December 19, 1969. Defendants made regular interest payments and some principal payments up to May 1971, but were continually behind on the payment of principal. On May 6, 1971, defendants made a single payment of $39,121.01 which brought the loan current and prepaid it through January 1973.
In February 1972, plaintiff learned that defendants were selling some secured livestock and not applying the proceeds to payment on the note. An officer of plaintiff went to defendants, took all the remaining cattle, sold them in February and March of 1972, and applied the proceeds to the note.
The trial court found that plaintiff had accelerated the note by its actions in February and March of 1972 of seizing and selling all the secured cattle remaining in defendants' possession, and that, since the instant suit was not filed until January 31, 1978, it was barred by the statute of limitations. Plaintiff appeals, alleging that the instant action was one solely on the promissory note, which by its terms provided for acceleration only in the event of default in payments; that the note was not in default at the time of the seizure and sale of the remaining cattle in February and March of 1972 and, therefore, could not be accelerated; and that the statute of limitations had not run since it applies to each installment.
The trial court took judicial notice of a security agreement between the parties executed the same day as the promissory note and securing that note. The security agreement was attached, as an exhibit, to a petition filed by plaintiff in a separate subsequent action in the same court against defendants. At the request of defendants, and without objection by plaintiff, the trial court took judicial notice "of the entire file in Case No. 9065 in the District Court of Antelope County, Nebraska, which was filed February 19, 1974 and dismissed by Order of this Court and this judge on March 6, 1975." The terms of the security agreement provided plaintiff with additional grounds for acceleration, including the sale or encumbrance of any of the collateral by defendants or a determination by plaintiff that it deemed itself insecure. The trial court found that the promissory note and security agreement were executed contemporaneously and should be construed together; that plaintiff had deemed itself to be insecure on February 15, 1972, and, by its actions, had declared the entire indebtedness due; that plaintiff's cause of action accrued on or before March 22, 1972, when the seized collateral was sold; and that plaintiff's instant action was barred by the 5-year statute of limitations. We affirm.
The question presented by plaintiff with regard to the judicial notice taken by the trial court is basic to its appeal. Plaintiff, in its first assignment of error, succinctly states its position: "The court erred in basing its order upon a security agreement which was not introduced into evidence at trial but which was attached to the petition of a related case of which judicial notice was taken."
The standard controlling judicial notice is set out in Neb.Rev.Stat. § 27-201 (Reissue 1979), which provides, in part: "(2) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
Subsection 2(b) is obviously the section applied by the trial court in this case. We hold that, under the facts of this case, the trial court may take judicial notice of a specific document attached to a petition filed by the same plaintiff against the same defendants in a separate action concerning the same general subject matter in the same court.
First of all, as stated in Witzenburg v. State, 140 Neb. 171, 178, 299 N.W. 533, 537 (1941): The instant case is one of the promissory note between the parties and the judicially noticed case was an action for conversion of security based on the same promissory note and the concurrently executed security agreement which secured the note. The two cases are interwoven and interdependent.
Secondly, the security agreement is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The promissory note and the security agreement were both executed on November 19, 1969. Copies of both were attached to a petition filed in the same court on February 19, 1974, by the same plaintiff against the same defendants. The 1974 petition, filed by the same reputable attorneys representing plaintiff in the instant action, alleged the execution of the note and security agreement by defendants alleged that the security agreement was executed to secure payment of the note; and alleged that the security agreement was in full force and effect on the date of the filing of the petition. Clearly, to be the basis of a lawsuit in 1974, the security agreement had to be operative between the parties in 1974. The agreement was operative when executed in 1969, and it had to be operative in February of 1972. The judicially noticed fact-the security agreement-is capable of accurate and ready determination by resorting to a source-a formal petition with attachments-whose accuracy cannot reasonably be questioned. The same plaintiff and the same attorneys give us no reason why that judicially noticed fact is not a fact operative between the parties.
It should be noted that plaintiff, if it did have objection to the judicial notice taken, had procedural remedies available to it of which it did not avail itself. Neb.Rev.Stat. § 27-201(5) (Reissue 1979) provides that, ...
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