Whirlpool Financial Corp. v. Mercantile Business Credit, Inc.

892 F. Supp. 1256, 1995 U.S. Dist. LEXIS 9889, 1995 WL 416272
District Court, E.D. Missouri·Decided July 11, 1995·No. No. 4:94CV00364 GFG·Published·Cited by 1 cases

Opinion

MEMORANDUM

GUNN, District Judge.

This matter is before the Court following a bench trial held from June 12, 1995 through June 15, 1995.

Plaintiff Whirlpool Financial Corporation (Whirlpool) filed suit against Mercantile Business Credit, Incorporated (MBCI), Richard Sullivan, Robert Bumberry, Richard [1258]*1258Weber and Donald Hindman. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. In an Order dated June 9,1995, this Court dismissed all counts against the individual defendants. At trial, counts I, II and III for an accounting, conversion and unjust enrichment respectively remained against MBCI.

I.Findings of Fact

1. Whirlpool and MBCI are engaged in the business of asset-based commercial lending. At all relevant times Consolidated Convenience Systems, Inc. (CCSI), formerly known as North American Capital Group, Inc., was the majority shareholder in Anda, Inc. (Anda) and the sole shareholder of Ozark Grocer, Inc. (Ozark). (Stip.)

2. Anda was a wholesale distributor of cigarettes, tobacco products and grocery products to convenience stores. Ozark also was a wholesale distributor of the same types of products to convenience stores. Both Anda and Ozark were based in Springfield, Missouri. (Stip.)

3. At all relevant times, Richard Sullivan was a stockholder, director, and Chief Executive Officer of CCSI and a director and Chairman of Anda. (Stip.)

4. At all relevant times, Robert Bumber-ry was a director and officer of Anda and president of Ozark. (Stip.)

5. At all relevant times, Richard Weber served as Chief Financial Officer of CCSI and a vice president of both Anda and Ozark. (Stip.)

6. Robert Price was senior vice president in charge of client relations for Whirlpool from 1989 until August, 1993. Price oversaw and monitored certain loan agreements including the LSA between Whirlpool and Anda. Price worked on the LSA documentation relating to Anda and was present when the LSA was signed in Chicago in November of 1989. (Price Test.)

7. At all relevant times, Michael O’Neal was vice president in charge of managing account executives at Whirlpool and worked on the Anda account. (O’Neal Dep. at 165.) Whether O’Neal is currently employed by Whirlpool is unclear.

8. At all relevant times, Jean Elie was an account executive and an auditor for Whirlpool. Before becoming an account executive, Elie had conducted audits of Anda. As an account executive, Elie worked on the Anda account and took over its management sometime before October of 1992. He currently works for the same financial company as Price. (Elie Test.)

9. At all relevant times, Lori Possley-Miazga was the account executive who oversaw the Anda account until sometime before she left on maternity leave in October of 1992. (Possley-Miazga Dep. at 5-6.)

10. Robert Early is an investment banker who at all relevant times was an investor in and employee of CCSI and a director of Ozark. (Early Test.)

11. At all relevant times, James Winschel was the vice president and managing director of the commerce finance division for Whirlpool. (Winschel Dep. at 9.)

12. From March of 1992 to February of 1993, Brad Hall worked for Anda and Ozark as a credit manager. (Hall Dep. at 6-7.)

13. Larry MeMullin joined Anda in May of 1990 as vice president of finance. In August of 1991, he became comptroller for Anda. (MeMullin Dep. at 6-7.)

14. On November 27, 1989, Whirlpool entered into a Loan and Security Agreement (LSA) with Anda. (Stip.)

15. Pursuant to the LSA between Whirlpool and Anda, Whirlpool’s loan to Anda included four separate extensions of credit: (1) a $1,250,000 senior real estate term loan; (2) an $800,000 senior machinery and equipment term loan; (3) a $2,500,000 senior subordinate term loan; and (4) an $11,000,000 revolving line of credit. (Stip.)

16. As security for Anda’s obligations under the LSA, Anda granted Whirlpool a security interest in, among other things, Anda’s inventory, accounts, general intangibles, equipment, furniture and fixtures, contract rights, and proceeds from all of the above. (Stip.)

17. Whirlpool perfected its security interest in that collateral by filing UCC-1 financial statements with the appropriate fifing [1259]*1259offices in Kansas, Kentucky and Missouri on or before January 31, 1991. (Stip.)

18. Under the LSA, the sale of inventory was permitted “only in the ordinary course of business, unless written permission the contrary is obtained from Whirlpool.” (Pl.Exh. 66 at ¶ 8.1.3.)

19. The LSA prohibited Anda from entering into any “sales or other transactions with any affiliates on terms less favorable than ... from a nonaffiliate.” (Pl.Exh. 66 at ¶ 8.2.10.)

20. The LSA also prohibited Anda from making any loans to affiliates. (Pl.Exh: 66 at ¶ 8.2.13.)

21. The loan from Whirlpool to Anda performed satisfactorily during 1990 with only minor inaccuracies in the inventory balances. (Price Test.)

22. Auditors would come in twice a year to make sure that all of Anda’s financial records were accurate and in order and to check on whether Anda owned its inventory since Anda’s good title was the key to Whirlpool’s maintenance of its security interest in Anda’s inventory. (Price Test.)

23. Price testified that Anda was in the business of distributing candy and cigarettes to places like Walmart and small convenience food store chains. Typically, Anda would receive payment within thirty days, fifteen to twenty days on average, from its customers. (Price Test.) Anda never charged interest to its customers on late payments. (Hall Dep. at 20-21.)

24. Anda submitted borrowing base certificates daily to Whirlpool. These certificates would then be used by Whirlpool to calculate the amount of working capital it would advance Anda. Such certificates would not have revealed an intercompany receivable because such an account would have been considered an “ineligible.” Ineligibles included that which could not have been counted in the formula in place to calculate extensions of working capital credit made by Whirlpool to Anda. The intercom-pany receivable between Anda and Ozark was considered an ineligible. (Price Test.; PLExh. 32.)

25. Information regarding the intercom-pany receivable was available in Anda’s fi-naneial statements and in its general ledger although not all sales were recorded on invoices. The receivable was also tracked by a rollforward report maintained by McMullin. (Pl.Exh. 85; Weber Dep. at 190; Elie Test.; Elson Test.; McMullin Dep. 84-85.)

26. Throughout its relationship with Whirlpool, Anda had an on-going problem with its reporting practices. Anda’s financial statements, which revealed the intercompany receivable, were often delinquent by a few months., (Price Test.; Elie Test.)

27. .Certain problems with Anda’s accounting practices and procedures were also recurring. Anda had a substantial inventory “write down” where the books did not match the inventory amount. The accounts receivable were not always accurate. Anda functioned as five separate entities or divisions; this created administrative difficulties in coordinating the reporting of all the managers’ reports.

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Whirlpool Financial Corp. v. Mercantile Business Credit, Inc., 892 F. Supp. 1256, 1995 U.S. Dist. LEXIS 9889, 1995 WL 416272 (E.D. Mo. 1995).

892 F. Supp. 1256 (Whirlpool Financial Corp. v. Mercantile Business Credit, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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