861 F.2d 1053 (7th Cir. 1988), 87-1763, Runnemede Owners, Inc. v. Crest Mortg. Corp.

Docket Nº:87-1763.
Citation:861 F.2d 1053
Party Name:RUNNEMEDE OWNERS, INC., and Ranjit S. Ghura, Plaintiffs-Appellants, v. CREST MORTGAGE CORPORATION and Steven M. Rayman, Defendants-Appellees.
Case Date:November 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1053

861 F.2d 1053 (7th Cir. 1988)

RUNNEMEDE OWNERS, INC., and Ranjit S. Ghura, Plaintiffs-Appellants,

v.

CREST MORTGAGE CORPORATION and Steven M. Rayman, Defendants-Appellees.

No. 87-1763.

United States Court of Appeals, Seventh Circuit

November 18, 1988

Argued Dec. 4, 1987.

Craig P. Rieders, Orenstein & Orenstein, P.C., New York City, for plaintiffs-appellants.

Marguerite M. Tompkins, Jenner & Block, Chicago, Ill., for defendants-appellees.

Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

This is a diversity case arising from Runnemede's unsuccessful attempts to obtain a business mortgage loan from Crest Mortgage. After considerable effort by both parties and considerable expense by Runnemede, Crest Mortgage refused, at the eleventh hour, to lend Runnemede the proposed mortgage money. Runnemede

Page 1054

sued Crest, asserting state law claims that Crest breached its contract with Runnemede, defrauded Runnemede, and converted the "commitment fee," Runnemede paid to Crest as consideration for the proposed loan. The district court granted Crest's motion to dismiss under Fed.R.Civ.P. 12(b)(6). We affirm.

FACTS

We accept as true the facts set forth in Runnemede's complaint for the purpose of reviewing the district court's grant of Crest's motion to dismiss. 1 These facts are as follows: On April 18, 1985, plaintiff-appellant Ranjit Ghura entered into a contract to purchase a Holiday Inn in Runnemede, New Jersey, from Turnpike Industries, Inc. for 6.2 million dollars. Ghura proceeded to assign the contract to the plaintiff-appellant Runnemede Owners, Inc., a corporation set up by Ghura, and engaged the services of Theodore Schwartz, a mortgage broker, who attempted to obtain financing for the hotel purchase. 2 Almost a year later, Schwartz contacted Crest Mortgage on Ghura's behalf. During this time period, Runnemede had given Turnpike two down payments in the amount of $50,000 each (curiously, the record fails to reflect whether Ghura's contract with Turnpike was contingent upon Ghura's securing financing).

After negotiating, Crest conditionally agreed (in a limited "commitment letter" executed in March of 1986) to lend Runnemede 5 million dollars if Runnemede could obtain a second mortgage of $950,000 from the seller Turnpike. Turnpike refused to provide the financial assistance, and the parties cancelled the March, 1986, commitment letter shortly thereafter. In March, 1986, Ghura had forwarded another $50,000 "down payment" to Turnpike, as well as $42,000 to Crest ($37,000 as provided in the commitment letter plus a $5,000 application fee).

After the parties cancelled the March, 1986, commitment letter, Crest reconsidered and agreed to issue a second conditional letter, dated April 10, 1986, for the increased sum of 5.5 million dollars. This letter is the subject of the present dispute.

Although labeled a "commitment" letter, Crest did not in fact commit to extend the proposed loan; instead Crest agreed to make the loan subject to a number of conditions. Thus a conditional commitment of this nature is not considered in the financial world as an unqualified guarantee to extend credit like a letter of credit. More importantly, Crest expressly refused to enter into a binding obligation to fund the loan until such time as it had completed its pre-closing investigation before giving final approval to the loan.

Paragraph IV of the letter, entitled "Conditions of Commitment; Loan Underwriting Requirements," provided in part that "[t]his commitment is subject to the borrower providing to lender at its cost and expense, and the lender in its sole discretion, approving each of the following in form, substance and content:

"4. Three years operating income and expense, and cash flow statements on the property, certified; as well as certified financial statements of borrower and guarantor....

17. Verification by CPA chosen by lender of income and expenses on this facility for 1983 through the present...."

In paragraph VI of the commitment letter, entitled "Voidance of Commitment," Crest reserved the right to cancel the commitment at any time prior to closing if

"... The income or expenses for the property materially and adversely

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changes after the date of the commitment or any material adverse change occurs in income, or expenses or property or market conditions in the area of the property...."

The letter further specified that within seven working days after receipt of all the data required under paragraph IV, Crest would notify Runnemede "of its [Crest's] intention to fund or not to fund pursuant to the terms hereof." Finally, the qualified commitment letter provided that the borrower was to pay a commitment fee of $165,000. One half of that amount was due upon acceptance of the qualified commitment letter by the borrower with the remaining payment due and payable upon closing. Crest agreed to refund the deposit on the commitment fee, if, during the underwriting process, Crest determined that it could not fund the loan through no fault of the borrower:

"... In the event that during the underwriting process lender determines that the loan contemplated hereunder, in its sole discretion, cannot be made as anticipated, through no fault of borrower, then the amount of fees paid herewith less the inspection fee ... shall be refunded to borrower."

The letter concluded with this provision:

"This commitment letter is subject to the Loan Committee's approval in form and content. The Committee shall approve or disapprove no later than April 15, 1986."

Before executing the qualified commitment letter, Ghura inquired of Steven Rayman, Crest's chairman, concerning the makeup of the Loan Committee reviewing Runnemede's loan application. Rayman replied, "Don't worry about the committee, I am the committee. What I say, goes. We have a deal." Interpreting Rayman's extracontractual statements of assurance as a guarantee that the loan would be approved, Runnemede accepted the April, 1986, qualified commitment, paid Crest another $47,500 toward the $165,000 commitment fee and forwarded another $100,000 to Turnpike as consideration for Turnpike extending the closing date on the hotel sale to May 7, 1986.

Following the parties' execution of the April qualified commitment letter, Crest commenced its underwriting investigation. As part of this investigation, Rayman met with Ghura at the hotel and conducted an inspection of the premises. Upon concluding the inspection, Rayman once again stated to Ghura "we have a deal."

On May 8 and 9, prior to the scheduled closing date, Crest's president, Michael McConnell, advised Ghura orally and in writing that based upon a review of an auditor's report of the recent financial data submitted concerning the hotel, Crest had decided not to extend the loan to Runnemede because Crest believed that the cash flow from the hotel would be insufficient to carry a 5.5 million dollar debt. Accordingly, Ghura was advised that Crest was withdrawing from its qualified mortgage loan commitment. In accordance with the terms of the April 10 letter, Crest offered to refund all deposits that Runnemede paid except for the $2,500 inspection fee. Mr. McConnell also advised Ghura that if Runnemede could reduce its borrowing needs, Crest might...

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