Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of St. Louis County. Honorable Robert S. Cohen.
Bonnie L. Clair, St. Louis, MO, for appellant.
Michael K. Daming, St. Louis, MO, for respondent.
Patricia L. Cohen, Presiding Judge. Roy L. Richter, J., and Robert M. Clayton III, J., concur.
Patricia L. Cohen, Presiding Judge
Samuel Berger appeals a judgment of the Circuit Court of St. Louis County granting RBRE Loan Portfolio's application for a charging order. Berger claims the trial court erred in failing to: (1) provide him at least five days' notice and conduct a hearing before granting RBRE's application for a charging order; and (2) require RBRE to establish the amount of the outstanding judgment and Berger's membership interest in the limited liability companies sought to be charged. We reverse and remand.
Factual and Procedural Background
In 2008, Alverne Associates, LLC obtained a loan from Regions Bank and executed two promissory notes evidencing loans in the original principal amounts of $911,483.24 and $714,250.00. Berger signed the promissory notes on behalf of Alverne Associates as " Samuel Berger, Managing Member of ALVERNE ASSOCIATES, LLC," and he executed a commercial guaranty to individually and personally secure the notes.
Alverne Associates additionally secured the notes by deeds of trust on real estate that it owned in the City of St. Louis.
Alverne Associates failed to make the required payments on the promissory notes, and Regions Bank filed an action against Alverne Associates and Berger for breaches of contract and commercial guaranty. On August 31, 2011, the trial court entered summary judgment in favor of Regions Bank in the amount of $1,775,618.67. The judgment assessed costs against Alverne Associates and Berger and provided that " [p]ost judgment interest continues to accrue at the highest lawful rate." Regions Bank subsequently assigned the promissory notes and deeds of trust to RBRE, and the trial court granted RBRE's motion for substitution as party plaintiff.
On November 6, 2013, RBRE filed its " Verified Application for Charging Order" (Application) pursuant to Section 347.119. In the notarized application, RBRE alleged that the trial court entered judgment against Berger and Alverne Associates in the amount of $1,775,618.67 and the judgment remained unsatisfied in the amount of $820,489.58. RBRE requested the court " issue a Charging Order requiring any limited liability company in which Samuel B. Berger has an interest to pay Plaintiff amounts up to the unsatisfied amount of the above judgment with interest from Samuel B. Berger's interest in said limited liability company . . . ." At the bottom of the Application appeared the signature: " Mante Dzakuma, RBRE Loan Portfolio, LLC." RBRE attached two charts ...