Before Bridges, C.j., Hinkebein, And Payne, JJ.
The opinion of the court was delivered by: Payne, J., For The Court:
First National Bank of Holmes County v. Bentley, et al, 95-CA-01354-COA
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 09/26/95
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - CONTRACT
TRIAL COURT DISPOSITION: JURY VERDICT FOR BORROWER IN BANK'S ACTION FOR REPLEVIN
The First National Bank of Holmes County brought suit, in the form of a replevin action, seeking to take certain farm equipment which was given as collateral to secure a loan made to Bobby and Linda Bentley. This suit was filed on June 10, 1994. On November 28, 1994, an amended complaint and affidavit in replevin was filed, seeking not only to replevin the farm equipment but also seeking a money judgment from the Bentleys in the sum of $47,952.22 plus reasonable attorney's fees and court costs. The Bentleys argued that the payment had been made in full under the theory of accord and satisfaction and thus they claim they were not liable for the payment.
Before a jury, the Bentleys received a verdict in their favor. Thereafter, First National Bank filed a motion for judgment notwithstanding the verdict, and in the alternative, a new trial. Both motions were denied by the trial court. Feeling aggrieved by the jury verdict and denial of a new trial and JNOV, First National Bank has perfected its appeal for review. Having reviewed the law and read the record, we affirm the jury verdict below.
On January 7, 1992, Bobby and Linda Bentley executed a promissory note to First National Bank, secured by a deed of trust on land and a security interest in other collateral, in the principal amount of $330,407. The promissory note facially reflects that the bank has a security interest in equipment, farm products, accounts, instruments, documents, chattel papers, and other rights to payment, general intangibles, and additional property described as follows:
Assignment of U.S.D.A. ASCS deficiency payment, assignment of $200,000 life insurance policy, assignment of a Bank of Yazoo City certificate of deposit # 31236 issued in the amount of $25,472.09 in the names of Bobby and Linda Bentley. Also, additional advance: deed of trust on second mortgage on 172 acres of landed located in Holmes County, Mississippi, the description of the land including timber, crops, mineral, and fixtures. Shanks Place of 91 acres; W.T. Cotton Place of 100 acres; H.T. Barrier Jr., with 739 acres. *fn1
Further language in the security agreement notes the following collateral: separate assignment of U.S.D.A. ASCS payments and a certificate of deposit dated January 7, 1992. The funds from this loan were planned to be used for crop production for the 1992 crop year. The loan proceeds were advanced to the Bentleys as needed.
On September 23, 1992, a note superceding the original note, which incorporated the debt of the first note, was executed by Linda and Bobby Bentley in favor of the bank. This note increased the Bentleys' debt by $25,000. The number for this loan was designated as # 120063, and the new balance to be repaid was $355,407. During the course of the year, the Bentleys received this money from the bank.
As the crops were harvested, the Bentleys began repaying the loan amount. According to the testimony of Oliver Harris, First National Bank decided on December 29, 1992, that the Bentleys would have trouble repaying the loan, so for tax purposes, the bank "charged off" $50,000 of the loan as a "principal only payment" of $50,000. The bank then set up a new loan account designated as loan # 123568 in the "charged off" amount of $50,000. After writing off $50,000 of the loan on December 29, 1992, the bank mailed to the Bentleys, by "notice of past due loan payment" dated January 8, 1993, a letter of notification which showed a total balance remaining due of $194,981.16 on loan # 120063. That notice made no reference to the $50,000 "charge off."
Bobby testified that he had not kept records of what he had paid on the note, or when the bank had advanced his farm money, or what amount had been advanced because he depended on the bank records to be right. Likewise, Bobby noted that he did not have documentation reflecting that he had made a $50,000 payment to the bank of December 29, 1992. However, he did testify that it was his interpretation of the bank's records that he had paid the total amount owed.
As additional collateral, the bank also held a second deed of trust on a 172 acre farm in Holmes County. Mr. Bentley decided that he would sell that farm due to the fact that his crop production would not pay down the loan. The farm was sold, but was subject to a first deed of trust held in favor of Federal Land Bank of South Mississippi and a second deed of trust held in favor of First National Bank in the amount of $54,391.82. After the land sale of 172 acres to a Mr. Parrish, the Barrett Law Firm issued a check to Bobby and Linda in the amount of $144,980.67. Bobby deposited these funds into his account at First National Bank on February 24, 1993, and wrote out a check in the amount of $125,000 to the order of First National Bank on that day, but the bank refused acceptance. The law firm also made a check payable to First National Bank dated February 24, 1993, for $54,391.82 on behalf of the Bentleys to pay off the second deed of trust on the Holmes County farm. However, the bank rejected acceptance of this check as well.
Oliver Harris testified that he refused acceptance of these checks because the crop loan, evidenced by the promissory note of September 23, 1992, was also secured under the additional advance clause of the deed of trust the bank held on the 172 acre farm. He also stated that those proceeds from that land sale should have been paid to the bank in order to secure the release of the bank's deed of trust on the 172 acre farm. Oliver Harris also stated that it was the bank's position that in order to secure a cancellation of the second deed of trust held by First National, it was necessary for the bank to be paid all of the sales proceeds after payment of the first mortgage to Federal Land Bank and payment of ad valorem taxes.
The day after the bank had refused to accept the checks tendered by and on behalf of Bobby, the bank acquiesced to Bobby's wishes and received the checks. At this time Bobby and Oliver Harris discussed payment of the remaining debt. Bobby testified that the bank could cash the certificate of deposit of approximately $25,000 which it held as collateral and supplement any deficiency with the monies from his cotton equities he would receive, and this would pay his debt in full. Oliver Harris testified that after the bank received the check for $54,391.82 and the check for $125,000 from Bobby, the bank canceled its deed of trust on the Holmes County farm and accepted that sum as payment in full so far as the land sales proceeds were concerned.
We note from the outset that the Bentleys have failed to file any briefs or rebuttals to the issues presented by the appellant. The Mississippi Supreme Court has recognized that the failure of the appellee to file a brief is tantamount to a confession of error and will be accepted as such. City of Jackson v. Burns , 302 So. 2d 508 (Miss. 1974). However, in our better judgment ...