Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of St. Louis County. Honorable Richard C. Bresnahan.
FOR APPELLANT: Paul J. Puricelli, Sam Alton - Co-Counsel, Clayton, Missouri.
FOR RESPONDENT: Michael P. Stephens, Sara M. Vatterott - Co-Counsel, Clayton, MO.
Philip M. Hess, Judge. Lisa Van Amburg, P.J. and Patricia L. Cohen., J. concur.
Philip M. Hess, Judge
Paramont Properties, LLC and Keith Barket (Defendants) appeal the judgment of the circuit court granting Reliance Bank (Plaintiff) summary judgment on Plaintiff's claims for breach of a promissory note and breach of a guaranty. On appeal, Defendants argue that the circuit court erred by (1) " striking" their affirmative defense and counterclaim for breach of the covenant of good faith and fair dealing; (2) granting summary judgment for Plaintiff; and, (3) dismissing their wrongful foreclosure counterclaim. We affirm.
In February 2008, Defendant Paramont Properties executed a promissory note (the Note) in the amount of $750,000 with Plaintiff, which was secured by a deed of trust on certain commercial property and guaranteed by Defendant Barket. The Note provided for a revolving line of credit, indicated that default would occur for borrower's failure to pay any amount due under the loan, and stated that upon default Plaintiff may declare the entire amount due including principal and accrued interest. In addition, the Note included the following language:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND U.S. (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
The Note's maturity date was February 20, 2010.
In late 2009, when the balance of the Note was $658,000, Defendant requested an advance under the Note to pay real
estate taxes. According to Defendants, Plaintiff requested Defendant to delay any further draws on the line of credit until the loan's maturity date so that Plaintiff could obtain an appraisal of the property. Plaintiff allegedly told Defendant that it would not take any adverse action against Defendant for failure to pay the real estate taxes and that it would extend the line of credit absent a material change in the property's value. Defendant voluntarily accommodated Plaintiff's request and did not make an attempt to draw on the line of credit.
Plaintiff obtained its appraisal on February 3, 2010, which valued the property at $1,580,000. On February 20, 2010, the date of the Note's maturity, the parties executed a written " change in terms of agreement." The modification extended the loan's maturity date to April 20, 2010 and changed the loan to a " term loan." Thereafter, the parties executed two more written modifications, the first extending the maturity ...