United States District Court, N.D. Indiana, Fort Wayne Division
CHAPEL RIDGE SECOND INVESTMENTS, LLC. Plaintiff,
THE REGISTERED HOLDERS OF GREENWICH CAPITAL COMMERCIAL FUNDING CORP., COMMERCIAL MORTGAGE TRUST 2007-GG9, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-GG9; U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR-IN-INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION, AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS HOLDERS OF GREENWICH CAPITAL COMMERCIAL FUNDING CORP., COMMERCIAL MORTGAGE TRUST 2007-GG9, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-GG9; AND LNR PARTNERS, LLC. Defendants.
OPINION AND ORDER
William C. Lee United States Judge
the complicated caption (which the Court will sift through
shortly), this case is a relatively straightforward contract
action between a mortgagor and a mortgagee. Presently before
the Court is the Defendants' Partial Motion to Dismiss
[DE 21] and the Defendants' request for oral argument on
that motion [DE 41]. For the following reasons, the Partial
Motion to Dismiss will be GRANTED. The request for oral
argument will be DENIED.
AND CAUSES OF ACTION
turning to the substance of the Defendants' Partial
Motion to Dismiss, it is helpful to clarify both the identity
of the proper parties to this suit as well as the causes of
action asserted by the plaintiff in this litigation.
Plaintiff, Chapel Ridge Second Investments, LLC (hereinafter
“Chapel Ridge” or “the Borrower”)
owns certain currently vacant commercial property commonly
known as 10290, 10550 and 10560 Maysville Road, Fort Wayne,
Indiana 46835 (“the Property”). Complaint,
¶9. In December, 2006, Chapel Ridge executed a
promissory note in the amount of six million four hundred
thousand dollars ($6, 400, 000) (“the Note”)
secured by a corresponding mortgage (“the
Mortgage”) on the aforementioned properties to
Greenwich Capital Financial Products, Inc.
(“Greenwich”). The Mortgage granted Greenwich a
security interest in the Property, its leases, rents and
proceeds, and certain other property as described in the
of certain assignments, both parties acknowledge that
Defendant U.S. Bank National Association (“U.S.
Bank”) is the current holder of the Loan Documents.
Both parties further acknowledge that “The Registered
Holders of Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust 2007-GG9, Commercial Mortgage
Pass-Through Certificates, Series 2007-GG9” (“the
Registered Holders”) is not a legal entity that is
capable of being sued and that the proper identity of the
Lender is U.S. Bank. Accordingly, the Registered Holders are
DISMISSED from this lawsuit.
addition, Plaintiff has named LNR Partners, LLC,
(“LNR”) as a defendant who is the loan servicer
for the above-referenced loan. LNR is authorized by U.S. Bank
to act on its behalf with respect to enforcement of the Loan
Documents. Accordingly, despite the lengthy caption, the
Plaintiff has, in essence sued U.S Bank and LNR (hereinafter,
collectively “the Defendants”).
now to the causes of action asserted in this suit, in their
Motion the Defendants express confusion over the precise
nature of the Complaint against them. On their reading of the
Complaint, Plaintiff has asserted causes of action for breach
of contract, negligence, and tortious interference against
them. However, in its response, Chapel Ridge indicates that
it has asserted only the following claims: breach of contract
and tortious interference with contract against U.S. Bank and
claims of negligence and tortious interference with contract
against LNR. It asserts no negligence claims against U.S.
Bank and no contract claims against LNR. With that
clarification, the Defendants' Partial Motion to Dismiss
addresses only the claims against LNR and the tortious
interference claim against U.S. Bank.
noted above, Chapel Ridge entered into a commercial loan
agreement for the Property, which operates as a shopping
center. At the time it entered into the loan agreement, the
shopping center had various tenants, including Marshalls and
Office Depot. Through a series of assignments, U.S. Bank is
the current holder of the Loan Documents and, as such, is the
Lender who is subject to all the terms and conditions of the
Loan Document as negotiated by its predecessors.
the terms of the Mortgage, the parties made certain covenants
including covenants regarding Chapel Ridge's obligations
for leasing the real estate. Under Section 14 of the
Mortgage, Chapel Ridge had the right to enter into or modify
without the Lender's prior written consent, “any
lease of space at the Property now existing or hereafter made
which affects less than 5, 000 square feet and provided the
term of such lease is less than five (5) years (an
‘Exempt Lease')…” (Complaint,
¶11). Also, under Section 14 of the Mortgage, for leases
other than Exempt Leases, the Mortgage required Chapel Ridge
to obtain Lender's consent before entering into such
leases. The Mortgage further contains a clause which
specifically provides a covenant that the Lender's
consent “shall not be unreasonably withheld.”
to the Complaint, on or about March 29, 2016, Chapel Ridge,
through its leasing agent Zacher Company
(“Zacher”), sent to the predecessor Lender's
servicer, Wells Fargo Bank, N.A., (“WFB”) a
proposed lease regarding the existing tenant, Office Depot
wherein it requested consent to the proposed lease.
(Id. at ¶'s13-14). Office Depot's lease
was set to expire on November 30, 2016 and Office Depot
exercised its first renewal option for an additional five
years with some adjustments in the lease terms which required
the consent of the lender. The proposed Office Depot lease
was in excess of 5, 000 square feet and the term of the lease
was for 5 years including additional optional terms.
(Id. at ¶13).
receiving no response from WFB, on April 13, 2016 Zacher
re-sent the request to WFB and inquired if WFB had looked at
the request. WFB responded by indicating that it was sending
the proposal to its Leasing Team for lender approval. Two
days later, WFB requested additional information from Zacher
and indicated that the approval request would be forwarded to
LNR as a “special servicer” given the size of the
tenant's premises. (Complaint, ¶17). Zacher, in
turn, provided all the additional information requested.
April 20, 2016, LNR contacted Zacher requesting an additional
copy of the proposed lease documents along with some
additional information, which Zacher supplied on the same
day. Additionally, LNR requested a payment of $2, 000.00 from
Chapel Ridge as payment to review the proposed lease
documents. Chapel Ridge paid the $2, 000.00 requested ...