statutes of limitations, unlike state uniform commercial codes, do not have a direct affect on the business dealings in a particular state. While businessmen generally rely on commercial law when engaging in commercial transactions, the same cannot be said for a statute of limitations which only takes on significance once a deal has gone sour.
While there is not an abundance of federal decisional law bearing on the issue of the enforceability of the guaranty in this case, there are two cases that are relevant. In United States v. S and B Hogs, Inc., No. 89-1633- T, 1992 U.S. Dist. LEXIS 11549 (D. Kan. July 16, 1992), the defendants asserted as a defense an error in an SBA guaranty. The guaranty referred to a promissory note dated November 5, 1977, instead of the note's actual date of October 6, 1977. S and B Hogs, No. 89-1633- T, 1992 U.S. Dist. LEXIS 11549 at 13. The following evidence was considered relevant: (1) other guaranties executed by defendants related to the same note and were dated the same as the note; (2) the incorrect date on the guaranty was handwritten whereas the dates on the other guaranties were typed; (3) defendants did not allege there was another note dated November 5, 1977, and corresponding to the November 5, 1977, guaranty; and (4) the note referred to in the misdated guaranty was for the same principal sum and same interest rate as set forth in the notes dated October 6, 1977. S and B Hogs, No. 89-1633- T, 1992 U.S. Dist. LEXIS 11549 at 13. Based on that evidence, the court concluded that the error in the date on the contested guaranty was nothing more than clerical and in no way affected the validity of the guaranty. S and B Hogs, No. 89-1633- T, 1992 U.S. Dist. LEXIS 11549 at 13-14.
The district court in United States v. Lowy, 703 F. Supp. 1040 (E.D.N.Y. 1989), ruled similarly in an analogous situation. There, defendants sought to escape liability under an SBA guaranty because the guaranty referred to a note as having been made on May 6, 1976 (the date of the guaranty) rather than on June 29, 1976, the true date of the note. Lowy, 703 F. Supp. at 1046. As the court noted, defendants could not explain what it was they were guaranteeing when they signed the May 6, 1976, guaranty. Lowy, 703 F. Supp. at 1046. Nor could defendants explain why the lender, amount and interest of the note referred to in the guaranty were exactly the same as the lender, amount and interest in the June 29, 1976, note. Lowy, 703 F. Supp. at 1046. The district court would not permit defendants to escape their obligations on the basis of a "trivial clerical error." Lowy, 703 F. Supp. at 1046.
The facts in this case are strikingly similar to those in S and B Hogs and Lowy. The guaranty here was dated March 27, 1986, and referred to a note dated March 27, 1986. That fact alone, of course, arguably suggests that the April 1, 1986, note was not the note guaranteed by the guaranty. The other relevant facts, however, lead to an opposite conclusion. The guaranty specifically stated that it was made to induce the bank to loan money to International Plastics. The parties to the April 1 note are none other than the bank and International Plastics. Furthermore, the guaranty refers to a note in the principal amount of $ 360,000 with interest at 12.25%. Again, the April 1 note also sets forth a principal sum of $ 360,000 at an interest rate of 12.25%. It is quite apparent, absent some evidence of another note between the bank and International Plastics actually dated March 27, 1986, and for the amount of $ 360,000 at 12.25% interest, that the reference to the note dated March 27, 1986, in the guaranty was nothing more than an error. Such a minor oversight, under these circumstances, should not provide the basis for defendant to escape his obligations under the guaranty.
In the context of this motion for summary judgment, defendant has not shown he is entitled to summary judgment as a matter of law.
For the foregoing reasons, defendant's motion for summary judgment is denied.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: April 27, 1993