Robert S. McDaniel, Jr. and W. Jane McDaniel - Page 23




                                       - 23 -                                         

          our negotiations, they were aware that I was the chief partner              
          and I had purchased Mr. McDaniel's interest."  Such testimony               
          does not establish that NationsBank/Amresco was aware of any                
          assumption by Mr. Palermo of Mr. McDaniel's partnership obliga-             
          tions.                                                                      
               On the present record, we find that petitioners have failed            
          to meet their burden of showing that NationsBank/Amresco knew of            
          any assumption by Mr. Palermo of Mr. McDaniel's partnership                 
          obligations.  We further find on that record that petitioners               
          have failed to satisfy their burden of showing that they comply             
          with the requirement of section 620.735 that a creditor of a                
          partnership which is dissolved know of any agreement by a person            
          to assume that partnership's existing obligations.                          
               Petitioners have also failed to persuade us on the instant             
          record that the third and last requirement under section                    
          620.735(3) is satisfied.  That is because they have failed to               
          show that NationsBank/Amresco consented during 1993 to a material           
          alteration in the nature or time of payment of the 1989 note.  On           
          the record before us, we reject petitioners' contention that                
          NationsBank "made a material alteration in the time of payment of           
          the partnership loan by not insisting on a lump sum payment of              
          principal on April 12, 1993 but allowing the payment of interest            
          only".  The express terms of the 1989 note, the Second Street               
          mortgage relating thereto, and Mr. McDaniel's guaranty, the first           





Page:  Previous  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  Next

Last modified: May 25, 2011