First Savings Bank, FSB v. Capital Investors

450 S.E.2d 83, 316 S.C. 360, 1994 S.C. App. LEXIS 130
CourtCourt of Appeals of South Carolina
DecidedSeptember 19, 1994
Docket2225
StatusPublished
Cited by1 cases

This text of 450 S.E.2d 83 (First Savings Bank, FSB v. Capital Investors) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Savings Bank, FSB v. Capital Investors, 450 S.E.2d 83, 316 S.C. 360, 1994 S.C. App. LEXIS 130 (S.C. Ct. App. 1994).

Opinion

The First Savings Bank, FSB, brought suit against Capital Investors, a South Carolina Joint Venture, and individual members thereof, to recover on a promissory note and personal guaranties. The defendants answered and counterclaimed alleging fraudulent inducement, breach of fiduciary duty, civil conspiracy and negligent misrepresentation. The [362]*362trial court granted the bank’s motion for summary judgment. Capital Investors and members J. Key Powell, Cynthia Engel and Albert Engel appeal. We affirm.

Capital Investors was organized by Metts,1 Powell, Cynthia Engel, Albert Engel, and Edward J. Sebastian2 to assist Thomas B. McTeer, Jr. in raising working capital for McTeer’s real estate operations. Capital Investors secured a $1,250,000 loan from the bank, and delivered the proceeds to McTeer. To secure the loan, the bank required the members of Capital Investors to enter guaranty agreements for $250,000 each. These agreements were signed by Metts, Powell, Albert Engel, and Sabastian, individually, and Cynthia and Albert Engel jointly.

Under the arrangement between Capital Investors and McTeer, McTeer would make monthly payments to Capital Investors which in turn would make the loan payments to the bank. McTeer further agreed to pay each of the investors a fee of $1,000 per month as long as the loan was outstanding. After a number of monthly payments. McTeer declared bankruptcy. Capital Investors obtained several extensions from the bank, but ultimately went into default on the loan, and the bank demanded payment of the outstanding balance of $1,297,379.67, plus interest. Capital Investors answered the bank’s complaint and counterclaimed, seeking to avoid the loan obligation and also seeking actual and punitive damages from the bank.

Capital Investors maintained the bank approached the members of Capital Investors with the plan to loan money to McTeer through Capital Investors, that A1 Barnett and Ray Davis of the bank, along with McTeer, led Capital Investors to believe the loan would be structured through Capital Investors for internal bank reasons only, and that Capital Investors would not have agreed to the loan if the bank had disclosed specific financial information about McTeer.

In her deposition, Cynthia Engel testified the loan was to be in the name of Capital Investors for only a short period, that McTeer needed money for an upcoming closing but was over his legal lending limit, and that the individual members of Capital Investors “didn’t have to worry about it” because it [363]*363was McTeer’s loan. When asked how the bank misled Capital Investors in this transaction, Cynthia Engel stated as follows:

Al Barnett came to my office to pick up ... financial statement[s] ... and he said, “Cynthia, have you seen Tom’s financial? And I said, “Yes. He has assets of $70,000,000”.... [H]e said, “Cynthia, you know if Tom doesn’t pay this loan, you all have to pay it.” I said, “Al, we are friends,” ... “you know I don’t have $250,000____ That is not my understanding. My understanding is we are not going to have to pay this note. I am not doing it if we have to pay this note.” And he said, “Cynthia, I am just picking up the financial statements, but you better check it with them.” I said, “I already know what Tom has said to me that Ray Davis has said.” He said, “You better check it with them.” So, I said “Okay, I will.” So I got up very nicely, I went next door to Tom’s office. I said, “Tom, Al Barnett says if you don’t pay this note, we have to pay it.” Al (sic) said “Cynthia, I don’t even know that boy ... I am calling Ray Davis.” ... So he picks up the phone and calls Ray Davis and tell Ray Davis that Al is there “screwing up his deal.” ... He says to me, “Al is just being a loan office.” He hangs up the phone and says, “I have taken care of it. Everything is okay. Al Barnett will never set foot in this office again.”

Cynthia Engel further stated she was not concerned about the note because of the telephone conversation between McTeer and Davis. She admitted, however, that she could only hear McTeer’s end of the conversation.

The loan documents included a commitment letter from the bank, signed by the members of Capital Investors, which provided as follows:

It is expressly understood that [the bank] is looking to the individuals that make up the Capitol Investors joint venture, either collectively or individually for repayment of this loan. [The bank] has not under written and is not relying on any entity or individual that is not part of this loan commitment for repayment of the debt.

Furthermore, the guaranty agreements each include the following language:

[364]*364Notwithstanding the aggregate sum payable to [the bank] at any time pursuant to the Obligations, the liability of the undersigned to [the bank] on account of this Guaranty Agreement shall not exceed at any one time the aggregate principal sum of $250,000.00 together with interest and all costs and expenses, including reasonable attorneys fees, paid or incurred by [the bank] in collecting and/or enforcing the Obligations.
The undersigned agrees to pay to [the bank] unconditionally and absolutely upon demand the amount owing on any of the Obligations, should the same not be paid in full by Borrower when due, whether by acceleration or otherwise, together with interest and all costs and expenses, including reasonable attorneys fees, paid or incurred by [the bank], in collecting and/or enforcing the Obligations.

As to the issue of attorney’s fees, the commercial note more specifically provided:

In the event that [the bank] turns this Note over to an attorney for collection, or for the protection of this Note or any instrument given to secure the payment of this Note . . . the undersigned agrees to pay all costs incurred thereby, including reasonable attorney’s fees, which shall be deemed in the even of default to be 15% of the unpaid balance after a default.

The trial court found Capital Investors failed to create a material issue of fact as to the claims of fraud or illegality, and that Capital Investors would not otherwise be permitted to offer extrinsic evidence to contradict or vary the terms of the loan documents. The court further found, assuming the truth of the defendant’s allegations, there was a failure of proof as to several elements of fraud, most notably, the right to rely. The court also stated this was an “arm’s length” credit transaction between sophisticated investors and a major lending institution in which no fiduciary relationship was created. Finally, the court rejected Capital Investors’ argument the note and guaranties were illegal contracts under 18 U.S.C. § 656, finding the statute dealt with criminal embezzlement and was therefore inapplicable to the facts of this case. The court granted summary judgment in favor of the bank, and held [365]*365Capital Investors liable for $1,188,619.22, plus prejudgment interest, costs and fifteen percent in attorneys’ fees. The court held the individual guarantors each liable under their respective guaranties.

I.

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Related

First Savings Bank, FSB v. Capital Investors
459 S.E.2d 307 (Supreme Court of South Carolina, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
450 S.E.2d 83, 316 S.C. 360, 1994 S.C. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-savings-bank-fsb-v-capital-investors-scctapp-1994.