This case is not published in a printed volume and its disposition appears in a table in the reporter.
Hancock & Estabrook
(Ashley D. Hayes, Esq., of counsel), attorneys for Plaintiff;
Robin R. Merrill,
Defendant, pro se;
Hughes & Stewart, P.C.
(Bryan J. Hughes, Esq., of counsel), attorneys for Defendant Alice Hyde Medical
David Demarest, J.
In this mortgage foreclosure action, Plaintiff (or "the bank") moves for summary judgment following discovery. Defendant Merrill ("Defendant" or "Merrill"), representing himself pro se, opposes the motion, alleging he has raised sufficient questions of fact which require resolution by a fact finder. It should be noted that by Decision and Order, dated October 1, 2003, this Court vacated Plaintiff's earlier default judgment appointing a Referee to compute, permitting Defendant to interpose a late Answer. During the intervening time, the parties have engaged in voluminous discovery. Relying on, among other things, Defendant's own testimony from his Examination Before Trial (EBT), Plaintiff contends it is entitled to judgment as a matter of law.
The following submissions have been considered: Plaintiff's Notice of Motion, dated December 10, 2004, together with affirmation of counsel, Ashley Hayes, Esq., dated December 10, 2004, with attached exhibits and a memorandum of law, dated December 10, 2004, and the affidavits of J. Richard Baker, sworn to December 9, 2004 with attached exhibits, and Thomas F. McDonald, sworn to December 9, 2004; Defendant's affidavit in opposition, sworn to January 5, 2005 with attached exhibits; Plaintiff's counsel's Reply Affirmation, dated January 12, 2005 with attached exhibit, Reply Affidavits of Thomas F. McDonald, sworn to January 12, 2005 with attached exhibit, J. Richard Baker, sworn to January 12, 2005 with attached exhibits, and John T. Morgan, sworn to January 12, 2005 with attached exhibits; and, Defendant's Sur-Reply Affidavit, sworn to January 19, 2005. The Court entertained oral arguments at its January 14, 2005 Special Term and thereafter received correspondence in relation to the parties' submissions in late January 2005.
Defendant and Plaintiff established a business relationship in late June 1999 when Merrill sought and was granted financing to purchase a local dairy farm in Franklin County with two separate $120,000.00 loans. One loan represented the real estate purchase ("1999 Note" and "1999 Term Loan Credit Agreement"), while the other represented the purchase of the equipment and dairy herd ("Second 1999 Note" and "Second 1999 Term Loan Credit Agreement"). In connection with the real property purchase, Merrill executed a Collateral Security Mortgage in the original principal sum of $120,000.00, mortgaging to Plaintiff his interest in real property. This mortgage secured:
"...payment of any and all Indebtedness...the maximum principal amount of Indebtedness secured....is the amount stated above...if the amount of Indebtedness outstanding at any one time exceeds said maximum amount secured, all payments in reduction of the Indebtedness shall be applied first to such excess not secured hereby and a lien of this Mortgage shall continue until Indebtedness secured hereby, including outstanding contingent liabilities, is finally and irrevocably paid in full."
The Mortgage further defined the indebtedness' secured thereby as constituting any and all "...other liability of Mortgagor to Mortgagee of every kind and character and all extensions, renewals and replacements thereof: (i) now existing or hereafter incurred." Moreover, "...non-payment, when due, of any part of the Indebtedness or any sum payable according to the terms of this Mortgage..." constitutes "an event of default" there under. The validity of these two originating loans is not in dispute.
Plaintiff's February 2002 complaint alleges Merrill's default under the 1999 Note, the 1999 Term Loan Credit Agreement, the Mortgage, the Agricultural Loan Agreement , the Second 1999 Note, the Second 1999 Term Loan Credit Agreement, the Second Agricultural Loan Agreement  owing to his failure to pay the full installment of principal and interest on those obligations due on December 1, 2000, and thereafter. In this regard, the 1999 Note and the Second 1999 Note permit declaration of the Notes as being "immediately due and payable" upon "...non-payment when due of principal or interest or any indebtedness evidenced by this Note...." Similarly, the 1999 Term Loan Credit Agreement and Second 1999 Term Loan Credit Agreement specify an event of default as "nonpayment when due, whether by acceleration or otherwise, of principal of or interest on any indebtedness created hereunder...." [ sic].
Merrill takes exception to certain allegations in Plaintiff's February 2002 complaint: the validity of the December 1, 2000 Optional Advance Time or Demand Grid Note ("2000 Note") wherein the maximum principal amount of advances was not to exceed $54,000; and, the validity of the January 11, 2001 Variable Interest Time or Demand Note  ("2001 Note") in the original principal sum of $47,000.00. It is alleged that the principal amount due and owing, $5,609.95 plus interest, under the 2000 Note remains due and owing despite Plaintiff's demands. Similarly, it is alleged that, in accordance with the specific terms of the 2001 Note, its $47,000.00 principal balance was declared due and payable upon Merrill's failure to pay ...