Back in 2008 and 2009 Eddie Liles lent around $102,000 to his brother Dallas to purchase rental properties at 554 South Shore Drive and 540 South Shore Drive in Greenup County, Kentucky, as well as a 2008 Ford 4×4 truck. The brothers signed a Loan Agreement that provided the loan would be interest free and that the loan for 554 South Shore Drive to be repaid first, followed by the loan for the truck, and finally the loan for the 540 South Shore Drive. The Loan Agreement called for Dallas to make payments of “ [a] minimum of $600.00 per year,” which it specified could be “multi-payments or one payment of $600.00.” It was also clear that Dallas could pay more than $600 per year towards the indebtedness, if he so desired.

The Loan Agreement also provided that if Dallas died, any outstanding balance would be forgiven. If, however, Dallas survived Eddie and the loan remained unsatisfied, the property would revert to Eddie. If both men died at the same time, and before satisfaction of the loan, the property was to pass to John B. Liles, II, or his estate. Eddie filed the Loan Agreement for record with the Greenup County Clerk and Dallas began making payments. As of early 2011 when the brothers had a falling out, Dallas had reduced the indebtedness to $89,400.

According to an affidavit filed by Dallas, the impetus for the falling out was an argument the two had in January of 2011 about a haircut. The argument was bad enough that the two were no longer communicated except for filing legal pleadings. Eddie refused to accept any more installment payments from Dallas and demand payment in full. Dallas refused but continued to make installment payments into an escrow account. Eddie filed suit and later sought summary judgment on the basis that he had full rights to demand payment in full. The circuit court determined that the loan was not a demand obligation and Eddie appealed.

The appellate court looked at the language of the Loan Agreement to determine whether the document created an explicit obligation to pay on demand and found that it did not. The court then went on to see if the indebtedness was actually payable at a “definite time” and thus clearly showing an intent for a term note. Inasmuch as the loan Agreement called for minimum yearly payments of at least $600, the court found that entire term of the loan was clearly ascertainable. The fact that the loan might extend for 170 years did not negate the fact that it was payable over a definite period of time, the relevant UCC provisions defining demand versus term obligations contains no outside limits on how far out a note’s maturity might be set. “While this is no doubt an absurdly long time, we are mindful that it is nevertheless a readily ascertainable one. It is not our job to rewrite the parties’ Loan Agreement. It is likewise not our job to rewrite the General Assembly’s statute to include an outer limitation on the definite time.”

While most banks use some sort of loan system to create their loan documents and it is pretty unlikely that a note with a 170-year maturity would not get flagged, the case serves as a valuable reminder of why we choose very specific words when drafting loan documents. What might appear to be a minor change can have long lasting consequences.

Liles v. Liles, 2015 WL 3643419 (Ky App 2015).