Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
Dec 13 2011, 9:14 am
of the supreme court,
court of appeals and
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
REX E. BENNETT
JAMES M. MATTHEWS
MAGGIE L. SMITH
JACOB V. BRADLEY
Frost Brown Todd LLC
RICHARD A. KEMPF
STEVEN C. SHOCKLEY
PETER J. PRETTYMAN
Taft Stettinius & Hollister LLP
COURT OF APPEALS OF INDIANA
THE HUNTINGTON NATIONAL
GEORGE P. BROADBENT,
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Heather A. Welch, Judge
Cause No. 49D12-1001-CC-446
December 13, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
The Huntington National Bank (“Huntington”) appeals the trial court’s denial of
its motion for summary judgment. Huntington raises four issues which we consolidate
and restate as whether the trial court erred in denying Huntington’s motion for summary
judgment. We reverse and remand.
The relevant facts as designated by the parties follow.
In November 2001,
Huntington extended a line of credit to George Broadbent, and Broadbent executed a
Promissory Note dated November 9, 2001 in the original principal amount of $4,000,000.
In 2004, Huntington and Broadbent agreed to certain modifications of the 2001
agreement and bifurcated the loan into a line of credit loan and a working capital loan.
Broadbent executed two promissory notes both dated December 1, 2004. The first
promissory note was in the amount of $3,000,000, and the second note was in the amount
In December 2008, Broadbent entered a note titled “Replacement Promissory
Note” in the amount of $3,000,000. Appellant’s Appendix at 45. The note contained the
25. Renewal and Replacement of Prior Notes. This Note renews, amends,
modifies and consolidates, and replaces in their entirety, the indebtedness
evidenced by (i) that certain Promissory Note dated December 1, 2004,
executed by [Broadbent] in favor of [Huntington] in the principal amount
of Three Million and no/100 Dollars ($3,000,000.00), as renewed, modified
and amended (hereinafter referred to as the “Equity Capital Note”), and
(ii) that certain Promissory Note dated December 1, 2004, executed by
[Broadbent] in favor of [Huntington] in the principal amount of One
Million and no/100 Dollars ($1,000,000.00), as renewed, modified and
amended (hereinafter referred to as the “Working Capital Note”).
[Broadbent] acknowledges and confirms that [Broadbent] shall continue to
be liable for all unpaid interest outstanding under the Equity Capital Note
and the Working Capital Note which as accrued through the date of this
Note and shall pay all of such accrued and unpaid interest prior to or in
connection with the execution of this Note. Notwithstanding anything
contained herein to the contrary, [Broadbent] further acknowledges and
confirms that [Huntington] shall not accept, nor be deemed to have
accepted, delivery of this Note until such time that (i) [Broadbent] has
executed and delivered to [Huntington] all documents, confirmations and
agreements that [Huntington] may require in connection with the renewal,
amendment, modification and consolidation of the loans evidenced by the
Equity Capital Note and the Working Capital Note, including but not
limited to executing and delivering to [Huntington] the Loan Agreement
and (ii) [Broadbent] has furnished to [Huntington] such other
documentation as [Huntington] may require in connection with the renewal,
amendment, modification and consolidation of the loans evidenced by the
Equity Capital Note and the Working Capital Note.
Id. at 54. The note stated that “[o]n the Maturity Date, the entire unpaid principal balance
and all accrued interest shall be due and payable.” Id. at 47. The note also defined
events of default and stated that an event of default includes “a failure by [Broadbent] or
any other obligor to pay, within ten (10) days upon demand or when due, any other
amounts due and payable pursuant to the terms of this Note or pursuant to the terms of
any other document or agreement executed by [Broadbent] or any guarantor in
connection with the indebtedness evidenced by this Note.” Id. at 49-50.
An Amended and Restated Loan Agreement “made and entered into effective as of
December 19, 2008,” referenced the 2004 notes and indicated that the note in the
principal amount of $3,000,000 was the “Equity Capital Note” and the note in the
principal amount of $1,000,000 was the “Working Capital Note.” Id. at 115. The
Amended and Restated Loan Agreement stated: “NOW, THEREFORE, in consideration
of these premises and the undertakings of the parties hereto, [Broadbent] and
[Huntington] hereby agree that this Agreement shall amend, modify, restate and replace
in its entirety the Prior Loan Agreement . . . .” Id. Huntington reaffirmed earlier
representations to Broadbent that regardless of the 2008 note’s maturity date, Huntington
would extend the maturity date as long as he was current on his interest payments.
Broadbent failed to pay Huntington the entire unpaid principal and accrued interest due
and owing under the Replacement Note on the maturity date or within ten days thereafter.
On January 5, 2010, Huntington filed a complaint seeking to recover
$1,041,486.71 plus interest and attorney fees.
On March 3, 2010, Broadbent filed an
Broadbent later filed an amended answer claiming that Huntington was
“estopped to assert a default of the Replacement Note.” Appellant’s Appendix at 76. On
March 29, 2010, Huntington filed a motion for summary judgment and argued that it was
entitled to summary judgment because Broadbent failed to pay the amounts due under the
Note and that Huntington is entitled to reasonable attorney fees. After a hearing, the
court denied Huntington’s motion for summary judgment.
The issue is whether the trial court erred in denying Huntington’s motion for
summary judgment. Summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756
N.E.2d 970, 973 (Ind. 2001)). All facts and reasonable inferences drawn from those facts
are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a
summary judgment motion is limited to those materials designated to the trial court. Id.
We must carefully review a decision on summary judgment to ensure that a party was not
improperly denied his day in court. Id. A party moving for summary judgment bears the
initial burden of showing no genuine issue of material fact and the appropriateness of
judgment as a matter of law. Id. (citing Monroe Guar. Ins. Co. v. Magwerks Corp., 829
N.E.2d 968, 975 (Ind. 2005)). If the movant fails to make this prima facie showing, then
summary judgment is precluded regardless of whether the non-movant designates facts
and evidence in response to the movant’s motion. Id.
Both parties cite Paulson v. Centier Bank, 704 N.E.2d 482 (Ind. Ct. App. 1998),
reh’g denied, trans. denied. In Paulson, Wayne Paulson borrowed from Centier Bank to
invest in a series of limited partnerships. 704 N.E.2d at 487. Wayne testified that he was
not in a position financially to participate in the investments, but was given financing by
the bank and assured that distributions from the investments would cover the interest due
on the notes and that when the investments were sold the proceeds would pay the
principal. Id. The notes did not contain any provisions to that effect and included only
standard repayment terms. Id. Wayne executed several renewals on the notes because
the investments did not perform as hoped, and eventually, his wife, Diane, began cosigning renewals. Id.
In 1987, the outstanding balances on Wayne’s loans for the investments were
consolidated into a single note signed by both Wayne and Diane in the principal amount
of $286,185.69. Id. The Paulsons made several agreements with the bank to reduce the
principal amount of the consolidated note, and although they made a few lump sum
payments, they largely failed to follow through with the agreements. Id. In July 1989,
the Paulsons signed an “Extension and Modification Agreement,” extending the time for
payment of the consolidated note to January 1, 1990. Id. When the note came due on
that date, the Paulsons defaulted and the Bank sued. Id. The Paulsons answered and
filed a counterclaim against the Bank, alleging fraud or constructive fraud, breach of
fiduciary duty, and that there was a different agreement than that actually signed based
upon oral statements. Id.
After a bench trial in 1994, the court ruled in favor of the bank in 1996. Id.
Specifically, the court concluded:
In this case, the Execution and Modification Agreement signed on
July 1, 1989 . . . is covered by the [Lender Liability Statute, Ind. Code §§
32-2-1.5-1 to -5] and, therefore, the Paulsons’ Counterclaim attempting to
allege an oral agreement is barred as there is no written document
confirming any of the material terms and conditions of the Paulsons’
alleged “agreement” with [the Bank] that their loan would not have to be
repaid until the monies became available from the Efron investments.
Id. at 491.
On appeal, the Paulsons argued that the Lender Liability Act did not become
effective until July 1, 1989, and because the agreement signed by the Paulsons on that
date was an extension and modification of credit agreements entered into prior to that
date, the Act should not apply. Id. At the time of the decision in Paulson, Indiana’s
Lender Liability Act provided:
A debtor may bring an action upon an agreement with a creditor to
enter into a new credit agreement, amend or modify a prior credit
agreement, forbear from exercising rights under a prior credit agreement or
grant an extension under a prior credit agreement only if the agreement:
is in writing;
sets forth all the material terms and conditions of the
is signed by the creditor and debtor.
Id. (quoting Ind. Code § 32-2-1.5-5). The court agreed with the Paulsons and held:
The Paulsons’ counterclaim alleging that the notes signed by Wayne
did not represent the true agreement of the parties with respect to
repayment of the loans is based upon the circumstances surrounding the
execution of the original notes in 1981, 1982, and 1983. These notes were
consolidated into a single note signed by both Wayne and Diane in 1987.
The maturity date of the consolidated note was extended by agreement
twice, the last agreement being dated July 1, 1989.
We agree with the Paulsons that the Lender Liability Act does not
apply to bar their counterclaim. The July 1, 1989 agreement rewrote the
original promissory note to reflect a maturity date of January 1, 1990, “the
same as if said Note were originally written to come due on that date.” R.
2784. The parties were still relying on the promissory note dated prior to
July 1, 1989, which was clearly outside the Act.
In 2005, the Indiana Supreme Court addressed whether the Lender Liability Act,
which prohibited a debtor from bringing an action upon a credit agreement unless it is in
writing, applies also to a debtor’s assertion of an affirmative defense. Sees v. Bank One,
Ind., N.A., 839 N.E.2d 154, 155 (Ind. 2005). The Court interpreted the Lender Liability
Act “as prohibiting only debtor-initiated action against a creditor” and held that the Act
did not prohibit a debtor’s assertion of an affirmative defense based upon oral
representations by the creditor. Id. at 159.
In 2006, the Lender Liability Act was amended to provide:
A debtor may assert:
a claim for legal or equitable relief; or
a defense in a claim;
arising from a credit agreement only if the credit agreement at issue
satisfies the requirements set forth in subsection (b).
A debtor may assert a claim or defense under subsection (a) only if
the credit agreement at issue:
is in writing;
sets forth all material terms and conditions of the credit
agreement, including the loan amount, rate of interest,
duration, and security; and
is signed by the creditor and the debtor.
Ind. Code § 26-2-9-4 (Supp. 2006).1
Huntington argues that “[a]pplying Paulson to our case, the issue is whether the
2008 Note is merely an extension of the original 2004 Notes, such that it can be said that
the parties in this case were still relying on the 2004 Notes and only the maturity dates
changed as a result of entering into the 2008 Note.” Appellant’s Reply Brief at 17.
Huntington argues that “[a]lthough there were a series of agreements in this case, the
particular agreement at issue came into existence after 2006 and, thus, the Act applies.”
Id. Huntington points out that Broadbent consolidated the 2004 notes “totaling four
million dollars into a new, single promissory note in the amount of three million dollars.”
Id. at 18. Huntington also points out that the 2008 Replacement Promissory Note was
different from the earlier notes in that it contains: (1) a definition section with twelve
different definitions; (2) a section titled “Computation of Interest;” (3) an additional
paragraph under the section titled “Payments;” (4) additional terms and restrictions under
Subsequently amended in 2011 by substituting “to” for “in” in subsection (a)(2). See Pub. L.
No. 76-2011, § 2 (eff. July 1, 2011).
the section titled “Prepayment;” (5) different “Events of Default;” (6) a “Waiver of Trial
by Jury” provision; and (7) a “Continuing Enforcement” provision. Appellant’s Reply
Brief at 18.
Broadbent argues that “the Bank’s complaint against Broadbent was ‘founded on’
the 2001 and 2004 Notes because, together with the 2008 Note, they created and
extended the single, continuing Line of Credit to Broadbent that the Bank’s complaint
seeks to collect.” Appellee’s Brief at 42. Broadbent also argues that “[i]f the Bank’s
claim were [sic] founded solely on the 2008 Note, as it now contends, there would have
been no need to attach the 2001 and 2004 Notes to the complaint.” Id. Broadbent also
argues that “[w]hatever minor differences might exist among the 2001, 2004, and 2008
Notes, the Bank relies on all of them in its complaint to collect the continuing Line of
Credit created five years before the amendment to the [Lender Liability Act] became
effective.” Id. at 43. In its reply brief, Huntington argues that it attached the earlier notes
“to provide context for understanding the history of the transactions between the parties.”
Appellant’s Reply Brief at 18.
We initially observe that the 2008 Note was titled “REPLACEMENT
PROMISSORY NOTE.” Appellant’s Appendix at 45. While Broadbent argues that the
“2008 Note likewise ‘renew[ed], amend[ed], modifie[d], and consolidate[d] . . . the
indebtedness evidenced by’ the 2004 Notes ‘as renewed, modified and amended,”
Appellee’s Brief at 42, the portion of the 2008 Replacement Promissory Note deleted in
Broadbent’s ellipses states: “and replaces in their entirety.” Appellant’s Appendix at 54.
Specifically, the 2008 Replacement Promissory Note states:
This Note renews, amends, modifies and consolidates, and replaces in their
entirety, the indebtedness evidenced by (i) that certain Promissory Note
dated December 1, 2004, executed by [Broadbent] in favor of [Huntington]
in the principal amount of Three Million and no/100 Dollars
($3,000,000.00), as renewed, modified and amended (hereinafter referred to
as the “Equity Capital Note”), and (ii) that certain Promissory Note dated
December 1, 2004, executed by [Broadbent] in favor of [Huntington] in the
principal amount of One Million and no/100 Dollars ($1,000,000.00), as
renewed, modified and amended (hereinafter referred to as the “Working
Appellant’s Appendix at 54 (emphasis added). The 2008 Amended and Restated Loan
Agreement stated: “NOW, THEREFORE, in consideration of these premises and the
undertakings of the parties hereto, [Broadbent] and [Huntington] hereby agree that this
Agreement shall amend, modify, restate and replace in its entirety the Prior Loan
Agreement . . . .” Id. at 115 (emphasis added). Based upon the differences between the
2008 Replacement Promissory Note and the earlier notes and the language in the 2008
Replacement Promissory Note and the 2008 Amended and Restated Loan Agreement, we
conclude that the 2008 Replacement Promissory Note constituted a new note and that the
2006 amendment to the Lender Liability Act applies. Thus, Broadbent cannot assert a
defense based on alleged oral modifications to the loan agreement.2
Huntington also argues that it is entitled to attorney fees and argues that
“Broadbent never challenged [Huntington’s] entitlement to these fees if [it] is successful
To the extent that Broadbent claims promissory estoppel, we observe that this court has
previously addressed this issue. In Ohio Valley Plastics, Inc. v. Nat’l City Bank, 687 N.E.2d 260, 263
(Ind. Ct. App. 1997), trans. denied, the court addressed a borrower’s argument that the Statute of Frauds
had no application because his lawsuit was based on theories of fraud and promissory estoppel and was
not an action upon an agreement as required by statute. The court held that “[t]he substance of an action,
rather than its form, controls whether a particular statute has application in a particular lawsuit.” Id. The
court concluded: “Regardless of whether the present cause of action is labeled as a breach of contract,
misrepresentation, fraud, deceit, promissory estoppel, its substance is that of an action upon an agreement
by a bank to loan money. Therefore, the Statute of Frauds applies.” Id. at 263-264.
in these proceedings.” Appellant’s Brief at 19. Huntington requests that this court
“declare that [Huntington] is entitled to the expenditures and expenses incurred by
[Huntington] in this litigation to enforce the 2008 Replacement Note, including its
reasonable trial and appellate attorney fees, and remand the case for a hearing on the
amount of such award.”
Broadbent does not address Huntington’s request for
The 2008 Replacement Promissory Note states:
In addition to all other sums payable under this Note, [Broadbent] shall pay
to [Huntington] (a) reasonable attorneys’ fees incurred by [Huntington] in
connection with (i) the protection of any security for or rights arising in
connection with this Note, (ii) the enforcement of any provision contained
in this Note or in any document executed in connection herewith, or (iii) the
collection of any indebtedness evidenced hereby or arising in connection
herewith (including without limitation attorneys fees incurred by Lender in
connection with any bankruptcy, reorganization, receivership or other
proceeding affecting creditor’s rights and involving a claim under this Note
or any document executed in connection herewith), (b) costs of collection,
(c) interest at the Default Rate on all accrued interest which is not paid
when due, and (d) interest at the Default Rate on all fees, costs and
expenses incurred by Lender which are to be reimbursed by [Broadbent]
pursuant to this Section, from the date demand for payment is made by
[Huntington]. If, after the occurrence of an Event of Default hereunder,
[Huntington] employs an attorney or attorneys to protect [Huntington’s]
rights or remedies arising in connection with this Note or any security for
this Note, then [Broadbent] shall pay to [Huntington] upon demand all
reasonable attorneys fees and expenses incurred by Lender in connection
with such Event of Default, regardless of whether any action is actually
commenced against [Broadbent] by reason of any such Event of Default.
Appellant’s Appendix at 48. Given this language in the 2008 note, we remand to the trial
court for the purpose of conducting a hearing to determine reasonable attorneys’ fees.
See Kruse v. Nat’l Bank of Indianapolis, 815 N.E.2d 137, 151 (Ind. Ct. App. 2004)
(remanding for the purpose of conducting a hearing to determine reasonable attorney fees
based upon language in a guaranty).
For the foregoing reasons, we reverse the trial court’s denial of Huntington’s
motion for summary judgment and remand with instructions to enter summary judgment
in favor of Huntington and conduct a hearing to determine reasonable attorney fees.
Reversed and remanded.
BAKER, J., and KIRSCH, J., concur.