Summary
holding that in the absence of acceleration clause, default did not result in entire remaining debt becoming due immediately and thus remand for a determination as to which monthly installments were barred by the statute of limitations was necessary
Summary of this case from U.S. Bank Nat'l Ass'n. v. BartramOpinion
No. 98-1410
Opinion filed April 16, 1999 JANUARY TERM 1999
Appeal from the Circuit Court for Seminole County, O. H. Eaton, Jr., Judge.
Barry R. Nager, Orlando, for Appellant.
Kenneth P. Hazouri and Julian Gonzalez of Drage, de Beaubien, Knight, Simmons, Romano, Neal, Orlando, for Appellee.
Suzanne Conry Reed sued Don and Boriboon Lincoln alleging that the Lincolns had defaulted on the terms of a promissory note by failing to pay monthly installments. In their defense, the Lincolns alleged that Ms. Reed's right to sue for collection of the entire debt was barred by the statute of limitations. The Lincolns argued that their failure to pay the installment which was due in August 1990 constituted a default which accelerated the entire debt due under the note, and that the default occurred more than five years prior to the filing of Ms. Reed's complaint. The trial court agreed and entered summary final judgment in favor of the Lincolns. Ms. Reed appeals, contending the trial court erred in so ruling because the promissory note did not contain an acceleration clause. We agree and reverse.
On May 4, 1990, the Lincolns executed a promissory note in the principal amount of $28,000 payable in 223 consecutive monthly installments of $304.85, including interest. The note was prepared on a preprinted form, but included the following handwritten language in the bottom margin: "Payments after 60 days late, note is in default." There was no language stating that, upon default, the unpaid installments would be accelerated and become immediately due. The Lincolns made only the first two payments due on the note.
On April 1, 1996, Ms. Reed sued to recover on the note. The Lincolns moved for summary judgment, arguing that the statute of limitations applied to bar the suit. The Lincolns argued to the trial court that under certain circumstances acceleration clauses are self-executing rendering future note payments automatically due upon default. See Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA), cert. denied, 156 So.2d 858 (Fla. 1963). They argued further that, in such cases, acceleration occurs without the necessity of action on the part of the payee. Contending that the term "default" as contained in the instant note was synonymous with the term "acceleration," they argued default on the note by failure to make the monthly payment constituted automatic acceleration of the entire debt. No case law or statutory authority was cited to support this broad definition; yet, the trial court accepted the argument. We disagree.
The dissent also agrees, concluding that "default" in "ordinary parlance" means that a debt is "collectible in full."
The terms "default" and "accelerated" are not synonymous or interchangeable. Default is defined as "a failure . . . [a]n omission of that which ought to be done . . . the omission or failure to perform a legal or contractual duty . . . to observe a promise or discharge an obligation." Black's Law Dictionary 376 (6th ed. 1990). For example, under the Uniform Commercial Code once a debtor is in default the secured party has the right to take possession of collateral; however, the creditor may not demand the entire sum due from a party in default. See § 679.503, Fla. Stat. (1997).
In contrast, "accelerate" means "to hasten the occurrence of." Random House Dictionary of the English Language 10 (2d ed. 1987). An "acceleration clause" is defined as:
A provision or clause in a mortgage, note, bond, deed of trust, or other credit agreement, that requires the maker, drawer or other obligor to pay part or all of the balance sooner than the date or dates specified for payment upon the occurrence of some event or circumstance described in the contract. Such clause operates when there has been a default such as nonpayment of principal, interest, or failure to pay insurance premiums.
Black's Law Dictionary 12 (6th ed. 1990). As noted above, no such clause was contained in the instant promissory note.
In Miller v. Balcanoff, 566 So.2d 1340 (Fla. 1st DCA 1990), the court was presented with a promissory note which was very similar to the one in the instant case. Id. The note in Miller provided: "[T]his note shall not be in default if the payment is made within ten (10) days of the due date." Id. at 1342. The first district held that the note did not call for acceleration of the entire obligation upon a delinquency in payment, stating that "it is well established that a maker's obligation under an installment note may not be accelerated in the absence of an acceleration provision." Id. (citing Bardill v. Holcomb, 215 So.2d 64 (Fla. 4th DCA 1968)). Likewise, the promissory note in the instant case does not contain any language indicating the parties' intent to accelerate the amount due upon default. Instead, the drafter of the promissory note simply included a provision stating that failure to make the monthly payment within sixty days of the due date constituted a "default." Accordingly, the Lincolns' default in August 1990 did not result in the entire remaining debt becoming due immediately.
We reverse the trial court's summary final judgment and remand this matter for further proceedings including a determination as to which monthly installments are barred by the statute of limitations.
REVERSED and REMANDED for further proceedings.
PETERSON, J., concurs.
SHARP, W., J., dissenting with opinion.
I would affirm the trial court's determination that all sums due under the promissory note are barred by the five year statute of limitations. § 95.11(2)(b), Fla. Stat. The facts in this case are not in dispute. The issue is the interpretation of the legally "amateur" promissory note employed by the parties in this case.
The printed form of the note provides (in part): "The maker and endorser of this note further agree to waive demand, notice of non-payment and protest. . . ." The principal sum due is $28,000.00, payable in monthly installments of $304.85, for 223 consecutive months, including interest at 11.5%. At the bottom of the installment note appears the following hand written words: "1st payment due 6-4-90 and payments after 30 days past due date must include $25.00 late fee. Payments after 60 days, note is in default."(emphasis supplied)
The Lincolns made the first two payments timely but made no additional installment payments thereafter. No demand for payment was made by the holder or payee of the note, apparently, but the note waives demand and notice of non-payment. The trial court construed the language of the note as meaning that the total indebtedness owed on the note was automatically accelerated and became due and payable on the 61st day after the third installment should have been paid. The result of this construction subjects the full balance of the debt owed to the bar of the five year statute of limitations, because the full note indebtedness became due more than five years before the suit in this case was filed.
§ 95.11(2)(b) provides:
Action other than for recovery of real property shall be commenced as follows:
(2) WITHIN FIVE YEARS. —
* * *
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
The statute of limitations begins to run on a promissory note when a cause of action accrues against the maker or obligor, or in other words, the day after the obligation is due, or mature. 12 Am.Jur.2d, Bills Notes § 1054 (1964); §§ 673.109(1)(c) and 673.122(1)(a), Fla. Stat. (1979).
The first issue in this case is to determine whether or not the acceleration clause was automatic, self-executing or absolute. In Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963), cert. denied, 156 So.2d 858 (Fla. 1963), the court construed an acceleration clause in a promissory note as being "self-executing" or "absolute." The note provided:
Upon default in the payment of principal and/or interest due on any note, secured by said mortgage, all notes so secured and remaining unpaid shall forthwith become due and payable notwithstanding their tenor.
The court noted there is a conflict in decisions outside this jurisdiction, and it adopted a view which since has been followed in this state. That is, if a promissory note contains language which accelerates the total indebtedness on the happening of a default in a installment payment due thereunder, but it does not contain language which expressly gives the holder or payee of the note the option to accelerate the total indebtedness, then, it will be treated as absolute. Absent proof of waiver by mutual assent or acquiescence, (which are not relevant to this case) the full indebtedness becomes due or "matures" when a default occurs.
The Baader court said it was necessary to give the words in an instrument their full and plain meaning, and no more. If the note does not contain language giving the holder the option to accelerate, then the court should not read optionality into it. Rather it said, a court should give effect to the express intent of the parties, citing to Fischer v. Wood, 119 S.W.2d 114 (Tex. App. 1938).
Applying Baader to this case, the note has no optional acceleration provision. Thus the note matured and the full amount represented by the note went into default on October 4, 1990, based on its express terms. No demand or notice was necessary.
Compare Jacobs v. Automotive Repair Center, Inc., 137 So.2d 263 (Fla. 1st DCA 1962).
The second issue in this case is whether the note contains an acceleration provision. In order to accelerate the total indebtedness due on an installment note, after default on an installment, the note must contain an acceleration provision. Florida Zippo, Inc. v. Prudential Ins. Co. of America, 579 So.2d 192 (Fla. 3d DCA 1991), rev. denied, 589 So.2d 290 (Fla. 1991); 11 AmJur.2d Bills Notes § 194; 10 C.J.S. Bills Notes § 92. Whether an acceleration clause exists is governed by the law of contracts. It is the trial court's responsibility to construe the language of a promissory note in this regard to give effect to the words used, and to ascertain the original intent of the parties.
11 Am.Jur.2d, Bills Notes § 194.
10 C.J.S., Bills Notes § 79.
There are two decisions decided by our sister court, which appear to reach different conclusions construing similar language. In the first case, Cook v. Merrifield, 335 So.2d 297 (Fla. 1st DCA 1976), the installment instrument provided:
Failure to pay any installment herein promptly when due shall cause the entire indebtedness to become immediately due and payable.
The court held that this was an absolute acceleration clause, and that the note automatically matured and became due in full when a default occurred with regard to one installment.
In the second case, Miller v. Balcanoff, 566 So.2d 1340 (Fla. 1st DCA 1990), the court held that the installment note in that case had no acceleration provision at all, and thus each installment matured on the due date for each one, even though earlier installments were in default. The instrument in that case provided for monthly installment payments until the principal was paid in full, and that "this note shall not be in default if the payment is made within 10 days of the due date." The Miller court held this language did not mean the full indebtedness became due or went in default, after an installment went unpaid past the ten day grace period. It only meant that the delinquent installment was in default after that time.
Miller and Cook can possibly be distinguished on the ground that the note in Miller did not expressly say the note would be in default if an installment payment went unpaid past the grace period. The note said the note would not be in default if an installment payment was made within the grace period. However it appears to me the logical interpretation of the language used would be to say that if the installment payment was not made within the grace period, the note would then be in default.
The language at issue in this case, in my view, is similar to that used in the Cook case. It says that if an installment is not paid within 60 days after it is due, the whole note is in default. It defies reasonable interpretation to conclude that this means only the past due installment is in default. If that is all it means, it serves no purpose.
If the total note indebtedness is in default, it follows that the holder of the note or payee, can immediately sue for the total balance. Otherwise the term "default" used in conjunction with "note," as used in the note in this case, means nothing. Further, in ordinary parlance, to non-lawyers and lawyers as well, being in "default" means the indebtedness is past due, immediately payable, and collectable.
Default is defined by the American Heritage dictionary as: "Failure to meet a financial obligation," among other things, and "failure to pay money when it is due." p. 374.
Default is defined as (among other things) "failure to pay interest or principal on a debt when due." Black's Law Dictionary 376 (5th ed 1979). Pursuant to the UCC, according to Black's, "default" means what the parties agree it is.
Although not as well drafted as many acceleration provisions in documents prepared by lawyers, the language used in this note was sufficient in my view to accelerate the total indebtedness on October 4, 1990, by providing the total note was in default at that point. I do not think it is necessary to use the magic words "accelerate" or "immediately due and payable," if that is the intent and effect of the words used.
Had the suit been filed on October 5, 1990, the full amount would have been collectable. I seriously doubt a court would have ruled, at that point, that only the one past due installment was recoverable, and that the payee must return to court every month or so to sue on the other installments on their due dates, as they "matured" for 223 consecutive months. What is the sense in that, if all were in default when the suit was filed? Accordingly, in my view, this note accrued and became due and payable because of the default, on October 4, 1990. Therefore, that is the date when the five-year statute commenced to run on the total indebtedness.