IP of a West 86th Street 1, LLC v. Morgan Stanley Mortgage Capital Holdings, LLC , 686 F.3d 361 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2891
IP OF A W EST 86 TH S TREET 1, LLC, et al.,
Plaintiffs-Appellants,
v.
M ORGAN S TANLEY M ORTGAGE
C APITAL H OLDINGS, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-CV-00573—Sarah Evans Barker, Judge.
A RGUED A PRIL 9, 2012—D ECIDED JUNE 11, 2012
Before F LAUM and H AMILTON, Circuit Judges, and
F EINERMAN, District Judge. Œ
F LAUM, Circuit Judge. In this case, twenty limited liability
companies (“the Investors”) joined together to invest in
Œ
The Honorable Gary S. Feinerman, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 11-2891
property in Indiana. Needing a loan to finance their
purchase, they formed a distinct limited liability
company, IP of A Fund Manager, LLC (“IPA Fund Man-
ager”), and vested in that entity the authority to ne-
gotiate and execute a loan on their behalf with Morgan
Stanley Mortgage Capital Holdings, LLC (“Morgan Stan-
ley”). They named Edward Okun as Manager of IPA Fund
Manager. Okun executed a loan, mortgage, and reserve
security agreement with Morgan Stanley.
IPA Fund Manager, under the terms of its authority,
was not allowed to hold an ownership interest in any
of the twenty limited liability companies; it is not clear
from the terms of the contract whether Okun, in his
individual capacity, was precluded from an ownership
interest, as well.
Morgan Stanley decided to sell the loan, ultimately
agreeing to sell it to an Okun-controlled entity, IP of A 5201
Lender, LLC (“IPA Lender”). As it structured the sale,
Morgan Stanley agreed to offset the purchase price of
the loan by the amount of funds available in several
escrow, reserve, and impound accounts (hereinafter
“the escrow accounts”), in which it held a security
interest and which were, under the terms of the loan
with the Investors, required to reimburse the Investors
for maintenance, taxes, and other property-related ex-
penses. IPA Lender, now holding the loan, never reestab-
lished the escrow accounts, depriving the Investors
of $1,361,184.63 in which they, too, had an interest.
Having abandoned their suit against Okun-controlled
IPA Lender, the Investors claim that Morgan Stanley,
No. 11-2891 3
by allowing IPA Lender to use the escrow funds to
finance its purchase of the loan, breached their loan
agreement and committed conversion. The district
court granted summary judgment for Morgan Stanley.
We affirm the district court’s ruling.
I. Background
The appellee, Morgan Stanley Mortgage Capital Hold-
ings, LLC, has one member, Morgan Stanley Capital, Inc.,
a Delaware corporation with its principal place of
business in New York. As a limited liability company
shares the citizenship of its members, the appellee is
a citizen of Delaware and of New York. See Muscarello
v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416, 424 (7th Cir.
2010); Thomas v. Guardsmark, LLC, 487 F.3d 531, 534
(7th Cir. 2007). The appellants are twenty limited
liability companies, IP of A West 86th Street 1-20. Each
plaintiff LLC has one member, none of whom are
citizens of either Delaware or New York. Accordingly,
the parties are completely diverse, and, with the amount
in controversy exceeding $75,000, subject-matter juris-
diction is secure under 28 U.S.C. § 1332.
A. Factual Background
The twenty LLCs in this case were formed in 2005 for
the express purpose of holding a fractional interest as
tenants in common in commercial real estate located at
5201 West 86th Street, Indianapolis, Indiana.
4 No. 11-2891
In 2004, the Investors paid $12,650,000 to buy the prop-
erty. They paid a $6,550,000 down payment and secured
a $7,100,000 loan from Dise Group, LLC. Combined,
the down payment and the loan exceeded the cost of
the property by $1,000,000. The extra money was
placed into escrow accounts.
1. Investors’ Refinancing Agreement with Morgan
Stanley
In 2005, Morgan Stanley refinanced the loan by lending
the Investors $7,100,000, of which $6,100,000 was used to
refinance the property and of which $1,000,000 was
deposited in the escrow accounts. This transaction was
memorialized by a promissory note (“Note”), a mortgage
and security agreement (“Mortgage”), and a reserve and
security agreement (“RSA”). Each of these documents
incorporated the terms of the others. Morgan Stanley
required that a single agent sign these loan documents
and otherwise act on behalf of the Investors.
In turn, each LLC executed a Consent of Co-Owners
(“Investors’ Consent”) and an amendment to its Limited
Liability Company Operating Agreement (“LLC Amend-
ments”). In short, they delegated limited authority to
sign and perform under the loan documents to IPA
Fund Manager. IPA Fund Manager was a distinct
limited liability company managed by Edward Okun.
The Investors’ Consent stated, in relevant part:
[T]he Co-Owners hereby authorize IPofA Fund Man-
ager, LLC, a Virginia Limited liability company (in-
No. 11-2891 5
cluding its manager, Edward H. Okun), in its
capacity as Vice President of each of the undersigned
Co-Owners, to execute in the name of and on behalf
of each fo the Co-Owners, and to deliver in connec-
tion with the Loan that certain Promissory Note,
Mortgage and Security Agreement, Assignment of
Leases and Rents, Environmental Indemnity Agree-
ment, Memorandum of Master Lease, Memorandum
of Tenants in Common Agreement, and any and all
commitments, pledges or assignments of any other
collateral, indemnities, certificates, affidavits, financing
statements, applications, notices and other instru-
ments, agreements or certificates related to the
Loan, and to take from time to time any other actions
necessary to effect the transactions contemplated
above, upon the terms and conditions identical in
all material respects to those terms and conditions
set forth in the commitment letter attached hereto
as Exhibit A, and the execution and delivery of such
agreements and documents by such Vice President
shall constitute conclusive evidence that the terms
and conditions contained in said documents or in-
struments have been approved on behalf of the
Co-Owners pursuant to this Consent. . . . [A]ny and
all other actions heretofore taken by any member,
manager, or authorized representative of the Vice
President to execute and deliver any of the
agreements authorized by the foregoing resolution
or to take any of the actions authorized by the fore-
going resolution are hereby approved, ratified, and
confirmed in all respects. No further action is con-
sented or taken.
6 No. 11-2891
The LLC Amendments stated, in relevant part:
3.02 Officers. The Company shall have one officer,
which shall be a vice president. The Vice President
shall have no voting rights nor have any ownership
interest in the Company. The sole responsibilities
of the Vice President shall be to execute the Loan
Documents on behalf of the Company pursuant to
the [Delaware Limited Liability Company] Act
or any successor statute in conjunction with its re-
financing of the Interest. . . . Notwithstanding any
other provision of this Agreement, the Vice Presi-
dent, without any further action of the Company or
the Member is hereby authorized to execute the
Loan Documents . . . on behalf of the Company. . . .
Third parties dealing with the Company shall be entitled
to conclusively rely on the signature of the Vice President
as evidence of the authority of the Vice President to
execute the Loan Documents on behalf to the Company
and to bind the Company.
3.05 Authorization. The Company, and the Member
or the Vice President on behalf of the Company, may
execute, enter into, deliver, and perform the
Loan Documents and all documents, agreements,
certificates or financing statement [sic] contemplated
thereby or related thereto . . . , all without any further act,
vote or approval of any Member of [sic] other Person
notwithstanding any other provision of this Agree-
ment, the Act or applicable rule or regulation.
(emphasis added).
No. 11-2891 7
2. Morgan Stanley Sells the Loan to Okun
Morgan Stanley intended to resell its loan. Proving
unsuccessful with third-party buyers, however, it agreed
to sell the loan to Okun. Okun purchased the loan
through an entity he controlled, IPA Lender.
On August 11, 2006, Morgan Stanley assigned the
Note, Mortgage, RSA, and escrow accounts to IPA
Lender. The Mortgage assignment stated that Morgan
Stanley:
[G]rant[ed], bargain[ed], s[old], convey[ed], assign[ed],
transfer[red], and set over, without recourse, represen-
tation, or warrant, all of [its] right, title, and interest,
of any kind whatsoever, including that of mortgagee,
beneficiary, payee, assignee, or secured party . . . , in
and to the . . . [Mortgage] . . . ; Together with the bonds
or notes or obligations described in said Mortgage . . . , and
the monies due and to grow thereon with the
interest, and any and all other related security instru-
ments which secure the indebtedness and/or obliga-
tions secured by said Mortgage . . . .
(emphasis added). IPA Fund Manager—still managed
by Okun and his associate, Lara Coleman—executed Bor-
rowers’ Escrow Instructions in connection with the
sale, which, in pertinent part, provided:
In connection with the sale of the Loan by [Morgan
Stanley] to [IPA Lender], [IPA Fund Manager] hereby
releases all escrow, reserve and/or impound
accounts (“Escrows”) of any nature related to the
Loan and transfers all of such Escrows to . . . [Morgan
Stanley] to have and to hold the same forever.
8 No. 11-2891
Lara Coleman, Okun’s associate and a manager at IPA
Lender, was the only signatory on these instructions.
According to the Investors, this provision modified
Sections 3.4 and 5.1 of the RSA, which stated:
Borrower understands and agrees that, in connection
with any sale of the Loan pursuant to Section 18.1 of
the Security Instrument, all of Lender’s interest in
the Reserves and the Reserve Escrow Accounts will
by assigned to the transferee of the Loan. . . .
Upon the earlier of (a) Borrower’s completion of all
Repairs to the satisfaction of the Lender . . . or
(b) payment in full of all sums evidenced by the Note,
Lender shall disburse to Borrower all remaining
funds in the Replacement Reserve, and the Tenant
Improvements and Leasing Commission Reserve.
When Morgan Stanley sold the loan to IPA Lender,
it held several escrow accounts totaling $1,361,184.63.
Morgan Stanley “netted” the escrow funds against the
purchase price of the loan, meaning that it credited this
amount against the amount IPA Lender owed. Simply
put, Morgan Stanley permitted IPA Lender to use the
reserve funds to pay part of the purchase price and,
thereafter, was uninvolved with the Investors’ loan.
3. Okun Stops Making Payments to the Investors
and Assigns the Loan to Cordell Consultants
Three weeks after purchasing the loan, IPA Lender
assigned it, as well as the escrow accounts, to another
entity as security for a $6,000,000 loan. It discharged
No. 11-2891 9
the assignment in November 2006. A month after
this assignment, the IPA Lender pledged the loan as
consideration for a $2,500,000 loan to it from Cordell
Consultants, Inc.
In July 2007, Okun stopped making monthly payments
to the Investors, and his companies sought bankruptcy
protection. Cordell Consultants became the owner of the
loan.
The Investors then stopped making payments to
Cordell Consultants, and Cordell Consultants brought
foreclosure proceedings against the property at 5201
West 86th Street. The Investors agreed to sell the
property to a Cordell Consultants-owned company in
consideration for its discharge of their obligations under
the loan documents.
Okun, in 2008, was convicted of wire and mail fraud,
conspiracy, and other crimes.
B. Procedural Background
The Investors first sued Okun-controlled IPA Lender,
claiming that it took the escrow accounts and, thus,
committed breach of contract and conversion. They
dropped this suit.
The Investors then sued Morgan Stanley in Marion
County Superior Court, claiming damages for breach of
contract and conversion. They requested treble damages
and attorney’s fees on the conversion claim, as well.
Morgan Stanley removed the case to the United States
District Court for the Southern District of Indiana. Both
10 No. 11-2891
the Investors and Morgan Stanley moved for summary
judgment.
The district court denied the Investors’ motion for
summary judgment and granted Morgan Stanley’s. The
Investors presently appeal.
II. Discussion
We review a grant or denial of summary judgment
de novo. See Egan Marine Corp. v. Great American Ins. Co.
of New York, 665 F.3d 800, 811 (7th Cir. 2011). Summary
judgment is appropriate when no issue of material fact
exists to be tried, and the moving party is entitled to
judgment as a matter of law. FED. R. C IV. P. 56(c); see
Egan Marine, 665 F.3d at 811 (citing Trentadue v. Redmon,
619 F.3d 648, 652 (7th Cir. 2010)). Once a party moves
for summary judgment, the burden falls to the
non-moving party to “marshal and present the court with
the evidence [that] . . . will prove her case,” Goodman v.
Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010),
and which reveals an issue of material fact still in dis-
pute. As we examine the record, the Court considers
all facts and draws all reasonable inferences in the
light most favorable to the non-moving party. See Egan
Marine, 665 F.3d at 811 (citing Egan v. Freedom Bank,
659 F.3d 639, 640-41 (7th Cir. 2011)).
No. 11-2891 11
A. The District Court Correctly Granted Summary
Judgment for Morgan Stanley
The documents governing the loan between the
Investors and Morgan Stanley—the Note, the Mortgage,
and the RSA—each state that “the laws of the state in
which the Property is located” apply. Accordingly, Indiana
law controls in this case. See United States v. Kashamu,
656 F.3d 679, 684-85 (7th Cir. 2011) (“Ordinarily a court
will enforce the choice of law rule selected by the
parties, no questions asked, unless they select a foreign
law that would be too difficult for the federal court to
apply . . . .”); Faulkenberg v. CB Tax Franchise Sys., LP,
637 F.3d 801, 809 (7th Cir. 2011) (“As for which state’s
law applies . . . we normally respect the law chosen in
the . . . agreement.”).
1. Investors’ Breach of Contract Claim
The Investors may sustain a breach of contract claim
against Morgan Stanley if (1) a contract existed between
them; (2) Morgan Stanley breached that contract; and
(3) the breach resulted in damages. See Haegert v.
Univ. of Evansville, 955 N.E.2d 753, 758 (Ind. Ct. App. 2011)
(citing Ruse v. Bleek, 914 N.E.2d 1, 11 (Ind. Ct. App. 2009)).
The Investors and Morgan Stanley agree that the Note,
the Mortgage, and the RSA constitute contracts between
them. Morgan Stanley contends that the Borrowers’
Escrow Instructions also constitutes a contract between
them, but the Investors challenge this document as exe-
cuted without their requisite authorization. Both parties
disagree on the issues of breach and damages.
12 No. 11-2891
According to the Investors, Morgan Stanley breached
the RSA. That document, they posit, allowed Morgan
Stanley to assign its interest in the escrow funds to a
buyer, not apply the funds to its sale of the
loan. Morgan Stanley could not “net” the funds without
breaching its agreement with the Investors unless it
was authorized to do so by the Borrowers’ Escrow In-
structions. Although the instructions released their
interest in the escrow accounts to Morgan Stanley, the
Investors argue that IPA Fund Manager did not have
authority to execute them. As IPA Fund Manager lacked
the authority or apparent authority to release the
escrow funds to Morgan Stanley, they claim, Morgan
Stanley could not “net” the escrow accounts without
breaching the RSA.
Morgan Stanley argues that it did not breach the
RSA. The loan documents, it argues, unambiguously
afforded it the right to sell the loan without notice to
the Investors and without their consent, as well as to
assign its rights in the escrow accounts to the buyer. In
particular, Morgan Stanley argues that after it assigned
its rights and delegated its obligations in the escrow
accounts to the loan’s buyer, the new buyer was bound,
as it was, by the original loan documents: IPA Lender
was required to set up reserve accounts for the Inves-
tors’ benefit. In Morgan Stanley’s view, it cannot
be held liable for Okun’s fraud or failure to comply
with the terms of the loan documents. It never author-
ized or purported to authorize IPA Lender to raid the
escrow accounts to finance its purchase of the loan.
No. 11-2891 13
a. Morgan Stanley Did Not Breach the RSA
Summary judgment on a breach of contract claim can
be appropriate when the terms of the contract are
clear and straightforward. Haegert, 955 N.E.2d at 758. If
ambiguity exists, the appropriate construction is an
issue of material fact meriting trial and within the
province of a trier of fact. Id. Under Indiana law, a
contract is ambiguous “only if reasonable persons
would differ as to the meaning of its terms.” Id. (citing
Trs. of Ind. Univ. v. Cohen, 910 N.E.2d 251, 257 (Ind. Ct.
App. 2009)). Moreover, “in the absence of anything to
indicate a contrary intention, writings executed at the
same time and relating to the same transaction will be
construed together in determining the contract.” Gold v.
Cedarview Mgmt. Corp., 950 N.E.2d 739, 743 (Ind. Ct.
App. 2011) (quoting Salcedo v. Toepp, 696 N.E.2d 426, 435
(Ind. Ct. App. 1998)).
The parties do not dispute that IPA Fund Manager
was authorized to execute the Note, the Mortgage, and
the RSA with Morgan Stanley and that both the
Investors and Morgan Stanley were bound by the terms
of those documents. As an initial matter, the terms of
the Note and the Mortgage make clear that Morgan
Stanley had a right to transfer the loan without the Inves-
tors’ knowledge or consent. The loan, represented by
the Note, was “secured by that certain Mortgage
and Security Agreement . . . in the principal sum of
$7,100,000 given by [the Investors] to (or for the benefit
of) [Morgan Stanley] . . . .” The Mortgage and Security
Agreement reiterates this relationship in Section 1.3, in
which it states:
14 No. 11-2891
This Security Instrument is both a real property mort-
gage and a “security agreement” within the meaning
of the Uniform Commercial Code. The Property
includes both real and personal property and all
other rights and interests, whether tangible or in-
tangible in nature, of [Investors]. By executing and
delivering this Security Instrument, [the Investors]
hereby grant[] to [Morgan Stanley], as security for
the Obligations (defined in Section 2.3), a security
interest in the Personal Property to the full extent
that the Personal Property may be subject to the
Uniform Commercial Code.
The Note and the Mortgage unambiguously grant
Morgan Stanley a mortgage and security interest in the
Investors’ property. According to Section 18.1 of the
Mortgage, Morgan Stanley enjoyed the right to “at any
time, sell, transfer, or assign the Note, this Security In-
strument and the Other Security Documents, and any
and all servicing rights with respect thereto . . . .”
The RSA expressly granted Morgan Stanley a security
interest in the escrow funds, as well as granted it a right
to assign those funds as it wished. In Section 3.1 of the
RSA, the Investors “pledge[d], assign[ed], and grant[ed]
a security interest to [Morgan Stanley] . . . in all of
[the Investors’] right, title and interest in and to each
of the Reserve Escrow Accounts and each of the
Reserves . . . .” In Section 3.4, the Investors unambiguously
represented that they “underst[ood] and agree[d] that,
in connection with any sale of the Loan pursuant to
Section 18.1 of the [Mortgage], all of [Morgan Stanley’s]
No. 11-2891 15
interest in the Reserves and Reserve Escrow Accounts
will be assigned to the transferee of the Loan.” The
only questions before us, then, are (1) whether Morgan
Stanley’s right to “assign” its interest in the escrow ac-
counts under the RSA included the right to “net” the
escrow accounts, and (2) if not, whether that right
was permissibly granted under the Borrowers’ Escrow
Instructions.
The Investors suggest that by allowing IPA Lender to
use the escrow funds to pay for the loan, Morgan
Stanley did something other than assign its interest in
the funds. The Note, Mortgage, and RSA do not define
the term “assign.” On appeal, however, the Investors
advance, and Morgan Stanley accepts, the term’s con-
ventional legal definition: “a transfer which confers a
complete and present right in a subject matter to the
assignee.” See Brown v. Ind. Nat. Bank, 476 N.E.2d 888,
894 (Ind. Ct. App. 1985).
Per the terms of Morgan Stanley’s transaction with IPA
Lender, an assignment unambiguously transpired. See
supra Part I.A.2. In addition to assigning its interest,
however, Morgan Stanley also delegated to IPA Lender
its obligations under the Note, Mortgage, and RSA. See
supra Part I.A.2. The loan’s sale terms clearly imposed
upon IPA Lender the responsibilities vis-à-vis the
escrow accounts that Morgan Stanley held before the
loan’s sale. In particular, IPA Lender was bound to
comply with the RSA and maintain the escrow accounts
as dictated by its terms. Those terms make clear that
Morgan Stanley—and now IPA Lender—was not re-
16 No. 11-2891
quired to treat those funds as a trust or avoid com-
mingling funds. Contrary to the Investors’ claims, the
RSA did not grant to the Investors an interest in each
unique dollar in the funds—only in the account totals.
Accordingly, when Morgan Stanley agreed to “net” or
credit IPA Lender the value of the cash in the accounts
against the sale price, it did not agree to let IPA
Lender pirate the escrow accounts. It permitted IPA
Lender to use the dollars in the accounts, now under its
control, to pay for the loan. In doing so, it was entitled
to assume and expect that IPA Lender would abide by
the terms of the transaction, and ensure any dollar
taken out of the accounts for the sale would be immedi-
ately replaced such that the escrow account totals re-
mained unaffected.
The Investors challenge twofold that the obligations
vis-à-vis the escrow accounts remained with Morgan
Stanley. First, they argue that, under Indiana law, Morgan
Stanley could not transfer its obligations to IPA Lender
without their consent, which they did not give. Sec-
ond, they argue that Section 3.4 of the RSA obligated
Morgan Stanley to ensure that IPA Lender replaced
the funds and that, as a result, Morgan Stanley should
have transferred the actual cash in the accounts upon
assigning its interest in them to IPA Lender.
Regarding their first argument, the Investors direct us
to Navin v. New Colonial Hotel, 90 N.E.2d 128, 133-34
(Ind. 1950), in which the Indiana Supreme Court held
that a party cannot assign away his liabilities without
the consent of his adversary party. See also Nelson v.
No. 11-2891 17
Reidelbach, 119 N.E. 804, 806 (Ind. Ct. App. 1918) (“It is
a general rule that rights arising out of a contract
cannot be transferred if they are coupled with
liabilities . . . such that the party whose agreement con-
ferred the rights must have intended them to be
exercised only by him in whom he actually confided.”).
They maintain that they did not consent to such an as-
signment by Morgan Stanley. The Investors, however,
overlook that they fostered in IPA Fund Manager—and
Okun—the authority, or at least apparent authority,
to consent on their behalf to such an assignment. See
supra Part I.A.1. Section 3.02 of the LLC Amendments
states, “Third parties dealing with the Company shall
be entitled to conclusively rely on the signature of the
Vice President as evidence of the authority of the Vice
President to execute the Loan Documents on behalf to
the Company and to bind the Company.” See id. The
Investors’ Consent identifies IPA Fund Manager as the
Vice President. See id. As such, when IPA Fund Manager
authorized the assignment—of both Morgan Stanley’s
rights and its obligations—to IPA Lender, Morgan
Stanley obtained the consent of its adversary party
and complied with the Navin Court’s edict. Whether
or not IPA Fund Manager was permitted to grant this
authorization to Morgan Stanley does not alter the fact
that Morgan Stanley was permitted to rely on IPA Fund
Manager’s representations that it was so empowered.
Furthermore, we do not agree that Section 3.4 imposed
an obligation upon Morgan Stanley to verify that IPA
Lender reconstituted the escrow accounts. That section
18 No. 11-2891
manifests the Investor’s consent to Morgan Stanley trans-
ferring its interest in the escrow accounts to the buyer
of the loan; it levies no additional requirements upon
Morgan Stanley. See supra Part II.A.1.a. We decline to
construe the terms of the agreement such that Morgan
Stanley would have avoided breach had it physically
transferred the funds to IPA Lender and then accepted
the same funds back into its coffers immediately after,
but committed breach because it skipped that formalistic
step and deducted the balance of the accounts from
the purchase price. The fact that IPA Lender did not
comply with its end of the transaction or fulfill its ob-
ligations toward the escrow accounts does not render
Morgan Stanley’s assignment anything other than an
assignment. Morgan Stanley had already performed
under the terms of the RSA when IPA Lender, now
bound by the RSA’s obligations, allegedly breached its
terms.1
1
Morgan Stanley assigned its interest and delegated its
obligations to IPA Lender as permitted by the RSA, see supra
Part II.A.1.a. Consequently, we do not examine the
legitimacy of the Borrowers’ Escrow Instructions or their
impact on the assignment between Morgan Stanley and IPA
Lender, except to note that the terms of those instructions do
not wrest from the Investors their interest in the escrow ac-
counts. The plain language of the instructions authorizes
only the transfer of the funds between Morgan Stanley
and IPA Lender.
No. 11-2891 19
b. Damages
Finding no breach of contract on the part of Morgan
Stanley, we do not examine the issue of damages.
2. Investors’ Conversion Claim
Indiana’s criminal conversion statute states that “[a]
person who knowingly or intentionally exerts unautho-
rized control over property of another person commits
criminal conversion . . . .” IND. C ODE § 35-43-4-3(a). Indiana
law permits a plaintiff to bring a civil conversion claim
under its criminal conversion statute. See IND. C ODE
§ 34-24-3-1 (“If a person . . . suffers a pecuniary loss as a
result of a violation of IC 35-43 . . . , the person may bring
a civil action against the person who caused the loss . . . .”).
To prevail on their civil conversion claim, the Investors
must prove the elements of the criminal conversion claim
by a preponderance of the evidence. See SJS Refractory
Co., LLC v. Empire Refractory Sales, Inc., 952 N.E.2d 758,
766 (Ind. Ct. App. 2011). In particular, they must prove
that Morgan Stanley knowingly or intentionally exerted
unauthorized control over their property, and that they
suffered pecuniary loss as a result of this unauthorized
control.
The Investors claim when Morgan Stanley allowed
Okun to apply the balance of the escrow accounts against
the purchase price of the loan, it committed conversion.
They contend that Morgan Stanley knew, by virtue of its
participation in drafting and executing the loan docu-
ments, that the Investors retained an interest in those
20 No. 11-2891
accounts. Morgan Stanley, they maintain, held the funds
in those accounts as a fiduciary for them. In their view,
it had no right to offset the loan’s purchase price with
those funds, and it knowingly exercised unauthorized
control when it did so.
Morgan Stanley counters, first, that the Investors are
raising their breach of fiduciary duty argument for the
first time on appeal and, thus, have waived it. Second, it
argues that the fiduciary duty analysis on which the
Investors rely does not apply in the context of the mort-
gage transaction. Finally, it challenges that the Investors
have failed to prove that it knowingly lacked authoriza-
tion to offset the purchase price with the escrow funds.
a. Waiver
During the proceedings below, the Investors based
their conversion claim on the fact that Lara Coleman, not
Okun, signed the Borrowers’ Escrow Instructions when
she lacked authorization to do so. They argued that
Morgan Stanley required Borrowers’ Escrow Instructions
to allow Okun to use the escrow funds to pay for the
loan, and, accordingly, that Morgan Stanley knowingly
prompted unauthorized control over the fund and
caused their pecuniary loss. The argument below does
not frame Morgan Stanley’s conduct as a breach of fidu-
ciary duty, so we find the argument waived. See Puffer v.
Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (“It is
a well-established rule that arguments not raised to
the district court are waived on appeal.”).
No. 11-2891 21
b. Unauthorized Control Over the Escrow Funds
Assuming arguendo that the Investors preserved their
breach of fiduciary duty claim, however, their argument
fails. The Investors suggest that Morgan Stanley was not
authorized to “net” the escrow funds against the loan’s
purchase price and that it knew it was not authorized
to do so. They predicate their argument on Morgan Stan-
ley’s purported fiduciary duty to them, suggesting that
Morgan Stanley could disburse the funds only in their
interest and with their explicit permission.
First, IPA Lender, if anyone, exercised unauthorized
control over the funds in the escrow accounts. Yet, were
this not the case, the Investors cannot establish a fidu-
ciary relationship between themselves and Morgan Stan-
ley. Under Indiana law, a “mortgagor/mortgagee rela-
tionship[] . . . do[es] not transform a traditional
debtor-creditor relationship into a fiduciary relationship
absent an intent by the parties to do so.” Paul v. Home Bank
SB, 953 N.E.2d 497, 504 (Ind. Ct. App. 2011) (quoting
Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 1042, 1046-47
(Ind. Ct. App. 2003)). Section 6.1 of the Mortgage expressly
disavows such a relationship, stating,
The relationship between [the Investors] and [Morgan
Stanley] is solely that of debtor and creditor, and
[Morgan Stanley] has no fiduciary or other special
relationship with [the Investors], and no term
or condition of any of the Note, this Security Instru-
ment, and the Other Security Documents shall be
construed so as to deem the relationship between
[the Investors] and [Morgan Stanley] to be other
than that of debtor and creditor.
22 No. 11-2891
Per the express terms of their agreement, the Investors
cannot demonstrate that Morgan Stanley owed them any
fiduciary duty. See id. (“Absent special circumstances,
a lender does not owe a fiduciary duty to a borrower.”).
Morgan Stanley enjoyed an independent security
interest in the escrow accounts and did not hold the
funds as a fiduciary for them. Consequently, they cannot
prove that Morgan Stanley exercised unauthorized
control of the accounts on this basis.
Notably, Section 3.4 of the RSA further undermines the
Investors’ unauthorized control argument. In that sec-
tion, the Investors represented that “[they] underst[ood]
and agree[d] that, in connection with any sale of the
Loan pursuant to Section 18.1 of the Security Instrument,
all of [Morgan Stanley’s] interest in the Reserves and
the Reserve Escrow Accounts will be assigned to the
transferee of the Loan.” Simply put, the Investors gave
Morgan Stanley express permission to assign its interest
in the escrow accounts to whoever purchased the loan,
and they imposed no restrictions on the means by
which it structured that assignment—applying the total
in the funds against the purchase price of the loan is
not prohibited under the RSA, particularly given that
commingling funds was permitted under its terms.
At best, the Investors may argue that Morgan Stanley
was not authorized to assign the funds to Okun or his
entities because he was the manager of IPA Fund
Manager, which was forbidden from holding an owner-
ship interest in the twenty limited liability companies for
whom it acted. See supra Part I.A.1. Yet, regardless of
No. 11-2891 23
whether the Investors’ Consent and LLC Amendments
precluded Okun, in his individual capacity or through
different entities, from taking a putative ownership
interest in the Investors’ companies by holding their
loan, Morgan Stanley was not a party to either of those
contracts. Therefore, Morgan Stanley did not commit
any unauthorized control by assigning its interest in the
funds to the Okun-controlled entity, IPA Lender.
Because the Investors cannot prove unauthorized use,
we need not examine the scienter and causation elements
of their conversion claim. They cannot prevail.
Morgan Stanley was not barred by the Note, the Mort-
gage, or the RSA from assigning its interest in the escrow
accounts to Okun or structuring a sale of the loan as it
wished. We conclude that Morgan Stanley committed
neither breach of contract nor conversion and was
entitled to judgment as a matter of law. The district court
correctly granted its motion for summary judgment.
B. The District Court Properly Denied the Investors’
Motion for Summary Judgment
Because the district court properly granted summary
judgment for Morgan Stanley, it appropriately denied
the Investors’ motion for summary judgment.
III. Conclusion
For the foregoing reasons, we A FFIRM the district court.
6-11-12