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10/21/94 WILLIAM E. MOSELEY AND LORETTA MOSELEY v.

October 21, 1994

WILLIAM E. MOSELEY AND LORETTA MOSELEY
v.
FIRST COMMUNITY BANK



Appeal from Clarke Circuit Court. (CV-93-91). Hardie B. Kimbrough, TRIAL JUDGE.

As Amended. Released for Publication February 10, 1995.

Jones, Maddox, Shores, Houston, Steagall, and Ingram, JJ., concur.

The opinion of the court was delivered by: Jones

JONES, RETIRED JUSTICE.

The debtors, William E. Moseley and Loretta Moseley, appeal from a summary judgment for the creditor, First Community Bank ("the Bank"), in the Moseleys' action seeking injunctive relief against the Bank's attempted foreclosure on a mortgage covering the Moseleys' real property. We affirm.

In 1987 and 1989, the Moseleys executed promissory notes to the Bank totalling approximately $270,000. These notes were secured by mortgages on four pieces of real property owned by the Moseleys.

In 1990, William Moseley filed for and was granted protection under Title 11, Chapter 13, of the United States Bankruptcy Code. The bankruptcy plan approved for Moseley by the bankruptcy Judge set out specific terms for the consolidation, reduction, and repayment of the debts owed the Bank by the Moseleys. When the Moseleys failed to comply with the repayment terms, the Bank began foreclosure proceedings.

The Moseleys sued to enjoin the foreclosure. Subsequently, they and the Bank entered into a "stipulation and agreement," which contained new repayment provisions, and the trial court, on July 26, 1993, entered a judgment, which adopted the agreement. Among other things, the agreement required the Moseleys to pay the Bank $15,000 "no later than August 31, 1993." On August 31, the Moseleys sent $15,000 to the Bank by certified mail; the Bank received the payment on September 3. The Bank then filed a motion for relief from the trial court's order on the grounds that the Moseleys had not paid the taxes on the real property and had failed to pay the $15,000 "no later than August 31."

The trial court conducted a hearing on the Bank's motion on October 5, 1993, and entered a judgment on the motion on January 31, 1994. The Moseleys appealed from the January 31 order; however, this Court remanded the cause to the trial court because "the claims for preliminary and permanent injunctive relief [had] not been adjudicated." The trial court entered a final judgment in the cause in compliance with this Court's order, and the appeal was then submitted to this Court.

The final judgment on which this appeal is based expressly provides that it is supplemented by the trial court's order of January 31, 1994. The pertinent portions of the January order and the final judgment entered on remand read as follows:

[The January 31, 1994, order]

"This cause came on to be heard on the 5th day of October 1993, for the court to determine whether the plaintiffs were in compliance with the Stipulation and Agreement entered in open court between the parties on the 26th day of July 1993.

". . ..

"1. . . . William E. Moseley failed to pay the defendant First Community Bank the sum of fifteen thousand dollars ($15,000) no later than August 31, 1993. Instead, the sum of fifteen thousand dollars ($15,000) was paid to the defendant on the 3rd day of September 1993, which was not in compliance with the said Stipulation and Agreement entered in open court on July 26, 1993.

"2. . . . As of the date of the hearing . . . plaintiffs owed defendant the sum of one hundred ninety-eight thousand two hundred thirty-nine and 78/100 dollars ($198,239.78). . .."

". . ..

"It is, therefore, ORDERED by ...


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