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COURT OF APPEALS DECISION DATED AND RELEASED June 29, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3349
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
METROPOLITAN LIFE
INSURANCE COMPANY,
A New York
Corporation,
Plaintiff-Respondent,
v.
JAMES WILSON
ASSOCIATES,
A Wisconsin Limited
Partnership,
DARRELL R. WILD
and KEY PERSONNEL,
INC.,
A Wisconsin
Corporation,
Defendants-Appellants,
FIRST NATIONWIDE BANK,
A Federal Savings
Bank,
Defendant-Respondent,
THE FIRST NATIONAL
BANK OF PORTAGE,
A Wisconsin Banking
Corporation,
BANK OF SUN PRAIRIE,
A Wisconsin Banking
Corporation,
JWP INVESTORS,
A Wisconsin General
Partnership,
JOHN C. KIRKPATRICK,
ASHOK KUMAR,
ALAN W. BABCOCK,
THOMAS C. LALLY,
ROBERT W. EDLUND,
FIAZ A. CHOUDRI
and BRUCE G. FELLAND,
Defendants.
APPEAL from a judgment
of the circuit court for Dane County:
DANIEL R. MOESER, Judge. Reversed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER CURIAM. James Wilson Associates ("JWA"),
its general partner, Darrell Wild, and its former general partner, Key
Personnel, Inc., appeal from a foreclosure judgment in favor of First
Nationwide Bank and Metropolitan Life Insurance Company. The issue is whether the appellants waived
their right to contest foreclosure and to exercise their redemption
rights. We conclude that they did not,
and we therefore reverse.[1]
Metropolitan holds the
first mortgage and First Nationwide a second mortgage on a building JWA
owns. JWA filed for bankruptcy in 1990
because it was unable to make a balloon payment owed to Metropolitan. While the bankruptcy case was pending, JWA
and First Nationwide renegotiated their loan contract in a stipulation calling
for $17,675.84 monthly payments, on the following terms (in relevant part):
9.The monthly payments due First
Nationwide ... are due and payable on the first day of each month.
10.If any of the payments ... are not
received by First Nationwide by the tenth (10th) of the month ... the Debtor
shall be deemed to be in material default as specified in this Stipulation.
11.If any of the payments (either
pursuant to this Stipulation or pursuant to the Plan of Reorganization) are not
received by First Nationwide as required under this Stipulation, First
Nationwide may give written notice by facsimile ... of the default to counsel
for Debtor and to Debtor. The Debtor
shall have two business days ... to effect a cure of the notice of default.
12.If the Debtor is in default under this
Stipulation, and has failed to cure as provided above, First Nationwide shall
be entitled to immediate lift of [bankruptcy] stay without further notice to
Debtor....
13.The Debtor also agrees that if First
Nationwide is entitled to immediate lift of stay, it may file an affidavit with
the Dane County Circuit Court stating that Debtor is in default and that Debtor
and Darrell R. Wild have agreed to the entry of the attached Judgment of
Foreclosure without further notice or hearing which are expressly waived by
Debtor and Darrell R. Wild.... Both
Debtor and Darrell R. Wild agree that they are waiving their redemption rights
... and are agreeing to the entry of the attached Judgment without further
notice or hearing.
14.Debtor
and Darrell R. Wild, reaffirm and agree to be bound by the terms of the note,
mortgage assignment of rents and any other loan documents, except to the extent
that they are specifically modified by this agreement.
JWA subsequently became
delinquent on the real estate taxes for the building, and also placed a junior
mortgage on the property. Both
occurrences violated its contract with Metropolitan. Metropolitan commenced this action on the basis of those alleged
defaults.
As a result, First
Nationwide also declared its loan to be in default and demanded full payment of
its loan. When JWA failed to pay the
entire amount due, approximately $1.9 million, First Nationwide cross-claimed,
alleging a default based on failure to pay real estate taxes, granting a junior
mortgage without permission, and defaulting under the Metropolitan
mortgage. Until First Nationwide
declared the loan in default, JWA made all of the required monthly payments.
First Nationwide then
filed a motion for an immediate judgment of foreclosure without redemption
rights, based on the bankruptcy court stipulation. The trial court granted the motion, and this appeal resulted.
Construing an
unambiguous contract is a question of law.
Patti v. Western Machine Co., 72 Wis.2d 348, 353, 241
N.W.2d 158, 161 (1976). Whether a
contract is ambiguous is also a question of law, which we decide independently
of the trial court's decision. See
Moran v. Schern, 60 Wis.2d 39, 46-47, 208 N.W.2d 348, 351-52
(1973). A contract is ambiguous only if
it is reasonably susceptible to more than one meaning. Central Auto Co. v. Reichert,
87 Wis.2d 9, 19, 273 N.W.2d 360, 364-65 (Ct. App. 1978).
The stipulation between
JWA and First Nationwide did not grant First Nationwide the right to an
accelerated foreclosure, without redemption rights, on the defaults alleged
here. First Nationwide contends that
JWA's default in making any payment, including the $1.9 million payment due
after acceleration of the loan, entitled First Nationwide to its remedies under
the stipulation. We disagree. The stipulation plainly concerns only the
renegotiated monthly payments due under the contract and the
reorganization plan, which JWA always made.
It did not modify JWA's defenses and rights on any other defaults, such
as those alleged here. No other
interpretation of the stipulation is reasonably available.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.