147 F.3d 759 (8th Cir. 1998), 97-2121, Stokors S.A. v. Morrison

Docket Nº:97-2121.
Citation:147 F.3d 759
Party Name:STOKORS S.A., Appellant, Mission Bank, Plaintiff, v. Richard E. MORRISON, Appellee.
Case Date:June 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 759

147 F.3d 759 (8th Cir. 1998)

STOKORS S.A., Appellant,

Mission Bank, Plaintiff,

v.

Richard E. MORRISON, Appellee.

No. 97-2121.

United States Court of Appeals, Eighth Circuit

June 26, 1998

Submitted Nov. 17, 1997.

Rehearing Denied Aug. 12, 1998.

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Jennifer S. Lohman, St. Louis, MO, argued (Susan Bradley Buse, St. Louis, MO, on the brief), for Appellant.

James F. Freeman, Kansas City, MO, argued (Thomas M. Moore, Kansas City, MO, on the brief), for Appellee.

Before RICHARD S. ARNOLD, 1 Chief Judge, and McMILLIAN and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Richard Morrison owed a judgment of $4,167,540.07, plus interest, to Stokors S.A. and the Mission Bank on a guaranty of a loan. Morrison filed a motion under Federal Rule of Civil Procedure 60(b) for satisfaction of the judgment. The district court granted Morrison's motion, holding under Rule 60(b)(5) that it was no longer equitable that Morrison's money judgment should have prospective application. Stokors now appeals, and we reverse.

I.

On December 24, 1985, the Mission Bank loaned $3,000,000 to the Elms Inn Partners. The loan was secured by an industrial revenue bond issued by the City of Excelsior Springs, Missouri, which in turn was secured by the Elms Hotel in Excelsior Springs. In addition, the loan was absolutely and unconditionally personally guaranteed by Morrison. See Guaranty, Dec. 24, 1985, reprinted in Appellant's App. at 11. The Elms Inn Partners defaulted on the loan, and, as of June 1, 1994, $4,167,540.07 in principal and interest was due and owing under the bond.

The Mission Bank assigned part of its interest in Morrison's guaranty to Stokors, a Swiss investment management firm. Stokors and the Mission Bank then brought an action against Morrison in the district court to enforce Morrison's guaranty. On May 8, 1995, the district court granted summary judgment against Morrison, and awarded Stokors and the Mission Bank a judgment of $4,167,540.07, plus interest accruing from June 1, 1994. See Order (May 8, 1995) at 6-7, reprinted in Appellant's App. at 107-08. Morrison's appeal of this grant of summary judgment was dismissed by this Court as untimely filed. See Stokors, S.A. v. Morrison, No. 95-2530, slip op. at 1 (8th Cir. July 26, 1995) (per curiam).

Meanwhile, the successors in interest to the Elms Inn Partners were in bankruptcy. In addition to the $4,167,540.07 debt owed to the Mission Bank, the bankruptcy estate was indebted to the Federal Deposit Insurance Corporation (FDIC) for $9,575,225.84, as successor in interest to two failed banks who were also bondholders on the project. The bankruptcy trustee was unsuccessful in disposing of the real property that secured the debts owed to the Mission Bank and the FDIC, and on July 28, 1995--several months after the district court reduced Morrison's guaranty to judgment, and after this Court dismissed Morrison's untimely appeal of that judgment--the Mission Bank and the FDIC assigned all of their interests in the debt owed to them to the City of Excelsior Springs. In making this assignment, the Mission Bank explicitly retained

[a]ny and all rights, title and interests in those certain guarantys signed and delivered by Clifford Roth and/or Richard Morrison to The Mission Bank and/or Metro North State Bank, dated December 24, 1985, by which Messrs. Roth and Morrison guaranteed repayment of the 1985 Elms Bond indebtedness to The Mission Bank and/or Metro North State Bank.

Assignment Agreement (July 28, 1995) at 1, Ex. B, reprinted in Suggestions in Supp. of Appellant's Mot. to Expand the R. (July 30, 1997) at Supplemental R. 6, 27. 2 In exchange

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for this assignment, with a face value of $13,742,765.91, the Mission Bank and the FDIC together received $411,000. See id. at 2, reprinted in Suggestions in...

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