Norwest Bank East St. Paul v. Larson

LESLIE, Judge (dissenting). I respectfully dissent. After citing the “due on sale” paragraph, appellants argue in their memorandum in support of summary judgment: The intent of the paragraph is clear. The bank has the right to approve an assumption and property transfer based on the creditworthiness of the transferee and a satisfactory interest rate to the bank. All parties agree that the bank waived its option to accelerate and approved the Cooks’ assumption of the mortgage. Paragraph 17 clearly provides upon approval of an assumption the lender shall release borrower from all obligations under the mortgage and the note. Paragraph 17 does refer to a written acceptance of the assumption. The obvious purpose of such a writing is to preclude any misunderstanding and to serve as evidence of the acceptance. Where the bank has in fact accepted the assumption, as in this case, the absence of a writing cannot be relied upon by the bank to avoid the release of the original mortgagor which results from the acceptance. There is no language in paragraph 17 referring to different types of assumptions as alleged by plaintiff, one with release of liability and one assumption without release of liability. Paragraph *590 17 is clear that when an assumption is approved, the borrower is released from all obligations under the mortgage and the note. I believe this argument is sound and would reverse and grant the Larsons summary judgment.