Apfelblat v. National Bank Wyandotte-Taylor , 158 Mich. App. 258 ( 1987 )

158 Mich. App. 258 (1987) 404 N.W.2d 725

APFELBLAT
v.
NATIONAL BANK WYANDOTTE-TAYLOR

Docket No. 89564.

Michigan Court of Appeals.

Decided March 2, 1987.

Shapack, McCullough & Frank (by Jerome D. Frank and Lori A. Lutz), for plaintiff.

Douglas C. Bernstein, for Michigan National Bank-Oakland.

Before: HOOD, P.J., and T.M. BURNS and J.X. THEILER,^[*] JJ

PER CURIAM.

Plaintiff Allen Apfelblat appeals from an order of summary disposition issued in favor of the defendant banks. He asserts that summary disposition should not have been granted to defendant Michigan National Bank-Oakland pursuant to MCR 2.116(C)(10) because material factual disputes exist as to three issues. We affirm.

Plaintiff began suffering from mental illness in the summer of 1983. In November, 1983, he executed two promissory notes, payable to defendant Michigan National Bank-Oakland, to finance the purchase of two automobiles. A third automobile purchase was financed by promissory note to defendant National Bank Wyandotte-Taylor, but that note is not at issue here. All three notes were secured by the automobiles they financed.

On January 6, 1984, involuntary commitment proceedings were commenced against plaintiff. He was committed to a psychiatric hospital, where treatment was successful. Plaintiff was released in February, 1984.

The Oakland Bank notes, due in lump sums in February and March of 1984, were unpaid. However, in response to the defendants' warnings that they would pursue debt-collection proceedings, plaintiff made some interest payments and executed new notes to cover the accrued debts of the old notes. This process was repeated, so that plaintiff's debts on the loans were last due in September and November, 1984.

In September, 1984, plaintiff filed this action, seeking discharge of the notes due to his lack of capacity at the time the original notes were executed. Plaintiff also asked the court to enjoin the defendants from taking any action in execution of the debts. Following a hearing, the court's temporary restraining order was dissolved and receivers were appointed for the automobiles. As they had been instructed, the receivers solicited offers to purchase the automobiles. The receivers later filed a list of the offers and requested court instruction regarding further proceedings. The court gave plaintiff twenty-one days to obtain higher bids than those obtained by the receivers, and then ordered the automobiles sold for the highest price.

Meanwhile, the Oakland Bank had filed a counterclaim for the amounts due on the two most recent promissory notes. Plaintiff answered with the affirmative defenses of lack of legal capacity on the original notes and lack of consideration regarding the renewal notes.

The sale of the automobiles on behalf of Oakland Bank resulted in a deficiency on the notes in the amount of $28,594.32. On September 4, 1985, the trial court granted the bank's motion for summary disposition, on the grounds that plaintiff had ratified the notes following his return to competency in 1984. On October 3, 1985, plaintiff moved to modify the order, and for the first time argued that his ratification of the notes was invalid because executed under duress. Plaintiff's motion was denied, and he appealed.

Plaintiff asserts three grounds for reversal, all premised upon the existence of material factual disputes that would preclude summary disposition under MCR 2.116(C)(10).

First, he argues that there remains a question of fact regarding whether he ratified the original promissory notes. Contracts made by mentally incompetent persons prior to adjudication of mental incompetency are not void, but are voidable. Brown v Khoury, 346 Mich. 97, 100; 77 NW2d 336 (1956); Gojcaj v Moser, 140 Mich. App. 828, 834; 366 NW2d 54 (1985). To rescind a voidable contract, an incompetent must take affirmative action. Until then, the contract must be treated as valid. Jack Mann Chevrolet Co v Associates Investment Co, 125 F2d 778, 783, 786 (CA 6, 1942). Voidable contracts can also be ratified after the contractor is restored to competency. Salliotte v Dollarhite, 211 Mich. 269, 273; 178 N.W. 694 (1920). Ratification may be express or implied, so long as there is knowledge of the material facts relating to the initial contract. Old Mortgage & Finance Co v Pasadena Land Co, 241 Mich. 426, 436; 216 N.W. 922 (1928).

In the instant case, there is no dispute that plaintiff was incapacitated at the time the original notes were executed. There is also no dispute that plaintiff was fully restored to competency at the time that he executed the various renewal notes. Plaintiff does not contend that he was ignorant of the terms and conditions of the original or renewal notes at the time he executed the renewal notes. Rather, his basis for opposing summary disposition is that he was ignorant of his legal standing at the time, and did not intend to technically "ratify" the initial notes by his execution of renewal notes. Thus, plaintiff does not assert a lack of knowledge of material facts, but professes ignorance of the law. His assertions are therefore insufficient to afford him relief from his express ratification of his debt. Cf., Sinka v McKinnon, 301 Mich. 617, 626-627; 4 NW2d 32 (1942); Burgess v Holloway Construction Co, 123 Mich. App. 505, 511; 332 NW2d 584 (1983), lv den 417 Mich. 1100.14 (1983).

Plaintiff next argues that summary disposition should not have issued because there remained a factual dispute regarding his duress claim. In an affidavit filed with his motion to amend the summary disposition order, plaintiff stated that his renewal of the notes was due to the defendant banks' threats to pursue their creditor remedies. We first note that plaintiff has not properly preserved his duress claim. As an affirmative defense to the counterclaim, plaintiff is required to raise his duress defense in his answer. His failure to do so constituted waiver of the defense. MCR 2.111(F)(2). Further, the facts averred in plaintiff's affidavit were not timely submitted. At the time the summary disposition motion was heard, the trial court was obliged only to consider the evidence then available to it. Spectrum Manufacturing Corp v Bank of Lansing, 118 Mich. App. 25, 31; 324 NW2d 523 (1982).

In addition, plaintiff's factual assertions failed to raise a proper duress defense. Duress requires compulsion or coercion by which one is illegally forced to act by fear of serious injury to person, reputation or fortune. Norton v State Highway Dep't, 315 Mich. 313, 319; 24 NW2d 132 (1946). Fear of financial ruin alone is insufficient to establish economic duress; it must also be established that the person applying the coercion acted unlawfully. Transcontinental Leasing, Inc v Michigan National Bank of Detroit, 738 F2d 163, 166 (CA 6, 1984). Thus, a creditor may properly warn of his intentions to pursue collection without being subject to a defense of duress. Hackley v Headley, 45 Mich. 569, 576; 8 N.W. 511 (1881). Here, the banks were entitled to enforce their contractual rights prior to any act of repudiation by plaintiff. Jack Mann Chevrolet Co v Associates Investment Co, supra.

Finally, plaintiff asserts that there is a material factual dispute regarding the commercial reasonableness with which the automobiles were sold. This argument is precluded by MCL 440.9507(2); MSA 19.9507(2). Under this statute, disposition of collateral in a judicially approved manner is conclusively presumed to be commercially reasonable. Ford Motor Credit Co v Traffic Transport Engineering, Inc, 150 Mich. App. 205, 208-209; 388 NW2d 281 (1986).

The circuit court's order of summary disposition is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.