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Filley v. Setzer

Court of Appleals of Nebraska

December 9, 2014

VILLAGE OF FILLEY, NEBRASKA, APPELLEE AND CROSS-APPELLEE,
v.
MARK SETZER AND KATHY SETZER, APPELLANTS, AND THOMAS SETZER, APPELLEE AND CROSS-APPELLANT

Page 259

[Copyrighted Material Omitted]

Page 260

Appeal from the District Court for Gage County: Daniel E. Bryan, Jr., Judge.

John C. Hahn and Brent C. Stephenson, of Jeffrey, Hahn, Hemmerling & Zimmerman, P.C., L.L.O., for appellants.

Eric J. Adams and Thomas O. Ashby, of Baird Holm, L.L.P., for appellee Village of Filley.

Daniel E. Klaus, of Rembolt Ludtke, L.L.P., for appellee Thomas Setzer.

MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.

OPINION

Page 261

[22 Neb.App. 576] Pirtle, Judge.

INTRODUCTION

The Village of Filley loaned money to HeatSource 1, Inc. (HeatSource), pursuant to a community development block grant program. Mark Setzer, Kathy Setzer, and Thomas Setzer (collectively appellants) were guarantors on the loan. HeatSource defaulted on the loan, and Filley filed suit against appellants. The district court for Gage County granted partial summary judgment in favor of Filley, finding that Filley's cause of action was not barred by the statute of limitations, and subsequently found appellants were liable to Filley in the amount of $116,469.67. Mark and Kathy appealed, and Thomas cross-appealed. Based on the reasons that follow, we affirm.

BACKGROUND

In February 2002, the State of Nebraska Department of Economic Development (Department) approved Filley and HeatSource for a community development block grant in the amount of $242,400. Of those funds, $236,440 was to be loaned from Filley to HeatSource, and in exchange for the [22 Neb.App. 577] loan, HeatSource was to provide 12 full-time job positions for 2 years in Filley.

On April 25, 2002, HeatSource and appellants, individually, signed and delivered a promissory note to Filley in the principal amount of $236,440, interest free, to be paid in 120 consecutive monthly payments in the amount of $1,970.33 each. The Department had no direct role in the making or the administration of the promissory note; Filley was the administrator and holder of the note. HeatSource and appellants, individually, also entered into a loan agreement with Filley on April 25, 2002, which further outlined the parties' rights and obligations.

Although appellants signed and were obligated under the terms of the promissory note, they also personally guarantied payment and performance of HeatSource's indebtedness to Filley by signing a guaranty dated April 29, 2002.

On November 4, 2003, Thomas transferred his interest in HeatSource to Mark and Kathy and/or HeatSource. In 2004, Filley learned that Thomas had transferred his interest and was no longer affiliated with the company. The promissory note contained an acceleration clause pertaining to the transfer of ownership in HeatSource which stated, " It is further understood and agreed that, in the event of the sale or transfer of any ownership interest in the Borrower, then this note shall become immediately due and payable." Filley did not take any action to collect the full amount due on the note.

Subsequently, HeatSource defaulted on its obligations owed to Filley pursuant to the promissory note by failing to make scheduled payments on the promissory note. The last payment Filley received was on June 8, 2009. The promissory note also had an acceleration clause in regard to a default in payments, which provided that " if there is a default in the payment of the debt, and it is not cured within Fifteen (15) days, or if default is made under the terms of the Loan Agreement . . . the principal sum, with accrued interest, will become due and collectible."

Page 262

On November 18, 2011, Filley filed a complaint against appellants alleging that HeatSource was " in default of its obligations owed to Village of Filley pursuant to the Note for, [22 Neb.App. 578] among other things, failure to make scheduled payments on said Note." Filley declared the note, and all amounts owed based on the note, due and payable in full. The complaint further alleged that HeatSource owed Filley the principal amount of $116,469.67, plus interest, and that ...


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