U.S. Bank National Association v. Roller

Filing 34

ORDER granting 16 motion for summary judgment in favor of U.S. Bank National Association and against Richard E. Roller. Further ordered that within 3 days of the date of this Order, U.S. Bank National Association shall file a proposed order calcu lating and setting forth the amount owed by Richard E. Roller under the personal guaranties including credits for any all monies receved on the indebtedness (including through a bankruptcy plan) through the date of this Order. Further ordered that t he telephone pretrial cnference set for Tuesday, December 20, 2011 as well as the trial set to commence on Monday, January 9, 2012 are cancelled. (hard copy of this Order mailed to Richard E. Roller at 11640 Emden Lane, P. O. Box 8, Racine, MO 64858 on 12/19/11) Signed on 12/19/11 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
U.S. BANK NATIONAL ASSOCIATION,
Plaintiff,
v.
RICHARD EUGENE ROLLER,
Defendant.

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Civil No. 10-3468-CV-S-JTM

ORDER
On February 27, 2004, plaintiff U.S. Bank National Association (“USB”) extended a loan
of $660,000 to the Virginia Roller Revocable Trust (“the Trust”). On April 11, 2008, USB and
the Trust entered into a modification of the loan, extending the maturity date and increasing the
loan amount to $1,500,000. In consideration of the loan and the later modification, on February
27, 2004 and on April 11, 2008, defendant Richard Eugene Roller (“Roller”) executed unlimited
continuing guaranties wherein Roller promised to repay the Trust’s indebtedness in the event of
a default.
In the present action, USB has brought an action against Roller seeking to recover on the
two guaranties based on the Trust’s default on the loan. Pending before the Court is USB’s
motion for summary judgment. In compliance with FED. R. CIV. P. 56, USB’s motion establishes
–by competent evidence – the underlying loan (and modification), Roller’s personal guaranties
on the indebtedness, and the Trust’s default. Initially, Roller – who is proceeding pro se – did
not respond to the motion. However, following a hearing with the Court, Roller ultimately did
file a response. Therein, Roller asserts a single argument, to wit:

[USB] has received payments, and continues to receive payments
under the approved Chapter 12 Bankruptcy Plan of the debtor,
Virginia Roller.1 With repayment plans continuing, [USB] cannot
determine an accurate claim of loss until the completion of the
Chapter 12 plan of Virginia Roller.
USB acknowledges that it has received payments under the bankruptcy plan for Virginia
Roller that have been applied to the Trust’s indebtedness. However, as noted by USB, even with
the application of such payments, the Trust is still in default. To that end, the personal
guaranties executed by Roller on February 27, 2004 and on April 11, 2008 provide that Roller:
absolutely and unconditionally jointly and severally guarantees
prompt payment of and promises to pay or cause to be paid to
[USB the indebtedness] whether or not the Obligations are valid
and enforceable against [the Trust,] whenever the Obligations
become due . . . or at the time [the Trust] . . . shall become the
subject of any bankruptcy or insolvency proceeding.
Moreover, the guaranties do not impose any requirement that USB exhaust efforts to collect from
the Trust before seeking to enforce the guaranty against Roller, specifically providing that USB
“can demand from and impose liability on [Roller] without first trying to collect from [the Trust]
or any other guarantor.”
In light of the language in the personal guaranties and the Missouri law on guaranties, the
Court finds that Roller’s response to the summary judgment motion is not sufficient to defeat
summary judgment. USB has established the amounts owed to it under the guaranties, but does
agree that those amounts are subject to adjustment based on payments received through the
bankruptcy plan. Compare Belote v. McLaughlin, 673 S.W.2d 27, 30 (Mo. 1984) (en banc)

1

Virginia Roller is Roller’s mother and the Trustee of the Trust. Ms. Roller and
the Trust are currently operating under a Chapter 12 bankruptcy plan in the District, In re
Virginia Lee Roller, Case No. 10-31125 (Bankr. W.D. Mo.).
2

(although there may be multiple and simultaneous efforts to collect on an indebtedness “there
can be one satisfaction of the amount of the debt”). Accordingly, it is
ORDERED that USB’s Motion For Summary Judgment , filed July 14, 2011 [Doc 16] is
GRANTED in favor of USB and against defendant Richard E. Roller for the default of the
Trust on its indebtedness. It is further
ORDERED that within three days of the date of this Order, USB shall file with the
Court a proposed order calculating and setting forth the amount owed by Roller under the
personal guaranties including credits for any and all monies received on the indebtedness
(including through a bankruptcy plan) through the date of this Order. It is further
ORDERED that the telephone pretrial conference set for Tuesday, December 20, 2011
as well as the trial set to commence on Monday, January 9, 2012 are cancelled.

/s/ John T. Maughmer

JOHN T. MAUGHMER
U. S. MAGISTRATE JUDGE

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