- 16 -
Although the note does not specify that Mr. Zimmerman signed in
his capacity as petitioner’s president, the note clarifies that
the note was entered into pursuant to the terms of the dealer
supply agreement and the rider between Lender and Borrower.
Thus, we are satisfied that petitioner was the promisor under the
note.
Respondent contends that the mortgage was subordinated to an
unknown debt because the mortgage states that it constituted a
“second” priority lien. Although the mortgage states that it
constituted a “second” priority lien on the property, it also
indicates that it was “superior to any and all other liens.”
Further, there were no other mortgages on the property, and the
mortgage was recorded with the Office of County Recorder,
Washington County, Minnesota. Respondent’s position is contrary
to the facts.
Finally, there is no evidence to support respondent’s
contention that Amoco did not consider petitioner’s financial
condition before making the advance. We do not think that
Amoco’s failure to require Mr. Zimmerman to submit records
regarding his personal financial condition in connection with his
guarantee indicates that Amoco did not intend the advance to be a
loan to petitioner.
In conclusion, when the $175,000 was paid to petitioner,
petitioner had an unconditional obligation to repay the full
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011