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LORETTA S. DeFOE v. GREAT SOUTHERN NATIONAL BANK

JULY 29, 1987

LORETTA S. DeFOE
v.
GREAT SOUTHERN NATIONAL BANK, ET AL.



BEFORE HAWKINS, P.J., ROBERTSON AND ANDERSON, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Loretta S. DeFoe has appealed from a summary judgment of the chancery court for the First Judicial District of Hinds County dismissing her complaint against the Great Southern National Bank of Jackson (Great Southern), United Petroleum Corporation and Charles D. Champlin.

DeFoe was beneficiary under a life insurance policy on the life of C. Delbert Hosemann, Sr., assigned by him to Great Southern as collateral security for an indebtedness due it by United Petroleum Corporation. Following Hosemann's death, the bank received the proceeds of the policy which it applied on the debt. Hosemann had also executed a personal guaranty for the debt. DeFoe sought to be subrogated to the bank's position against Champlin, also a guarantor of the debt, United Petroleum Corporation and Hosemann's estate. The chancellor did subrogate DeFoe as against Hosemann's estate (from which there has been no appeal), but dismissed her claim to subrogation against Champlin and United Petroleum Corporation.

 We find the chancellor was correct in granting summary judgment in favor of Champlin, but prematurely found in favor of United Petroleum Corporation. DeFoe may very well be entitled to the right of subrogation as against United Petroleum Corporation, the maker of the note. We reverse and remand in part.

 FACTS

 Charles D. Champlin, a resident of Rankin County, and C.

 Delbert Hosemann, Sr., a resident of Hinds County, were shareholders in United Petroleum Corporation, an Ohio corporation with principal offices in Jackson. Champlin owned 55% of the outstanding shares, and Hosemann owned 200 shares. The record does not reveal if any other individuals owned stock in the corporation.

 On July 30, 1982, United Petroleum borrowed $1,200,000 from the Great Southern National Bank and executed a note in this amount due in six months. United Petroleum also executed a deed of trust covering oil and gas leases and mineral interests in Ohio as security. Champlin and Hosemann each executed a continuing guaranty for $1,200,000 to secure United Petroleum's indebtedness to Great Southern.

 Champlin also assigned a $2,000,000 life insurance policy in effect with Transamerican Occidental Life Insurance Company as collateral security for United Petroleum's indebtedness.

 On September 23, 1982, the Penn Mutual Life Insurance Company issued a life insurance policy to Hosemann in the face amount of $500,000. The beneficiary was Loretta S. DeFoe, a resident of Jackson, if she survived Hosemann, and if not, a son, William J. DeFoe, and if he failed to survive Hosemann and Loretta S. DeFoe, then to Hosemann's executors and administrators. On January 17, 1983, Hosemann assigned this policy to Great Southern as collateral security for the indebtedness due the bank by United Petroleum.

 On July 25, 1983, United Petroleum executed a renewal note to Great Southern in the principal amount of $1,007,455, due January 23, 1984.

 Hosemann died September 24, 1983. Great Southern filed a claim as assignee under the insurance policy and on November 17, 1983, Penn Mutual, after making an adjustment because of age discrepancy, paid Great Southern $454,610.83 as payment in full for all sums due under the policy.

 On January 13, 1984, Loretta S. DeFoe filed her complaint in the chancery court of the First Judicial District of Hinds County naming as defendants Great Southern, United Petroleum, Champlin and Hosemann's estate.

 DeFoe charged Great Southern was required to marshal all the assets of the debtors in seeking payment, but the main thrust of her complaint was that she was entitled to be subrogated to Great Southern's position against United Petroleum, Champlin and Hosemann's estate insofar as the

 insurance proceeds had reduced United Petroleum's indebtedness.

 Following affidavits and pre-trial depositions, all parties filed motions for summary judgment. The chancellor granted a summary judgment in favor of United Petroleum, Champlin and Great Southern, and in favor of DeFoe against Hosemann's estate.

 DeFoe appealed. Hosemann's estate filed no appeal.

 LAW

 I.

 DOES DeFOE HAVE ANY RIGHT OF ...


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