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Burns v. Anderson, 4th Cir. (2004)
Burns v. Anderson, 4th Cir. (2004)
Burns v. Anderson, 4th Cir. (2004)
No. 03-2162
DONALD A. BURNS,
Plaintiff - Appellee,
versus
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-02-1326-A)
Argued:
Decided:
PER CURIAM:
This case involves a dispute arising out of the default by
Appellants Walter C. Anderson, Gold & Appel Transfer, S.A., and
Revision LLC (collectively referred to as the Borrowers) on a
$14,310,400 loan by Appellee Donald A. Burns.
three grounds.
argue that the district court should not have adopted the report
and testimony of Burnss expert witness as a guide in calculating
Burnss damages.
I.
Burns lent the Borrowers $14,310,400, which was to be repaid
to Burns plus interest on or before December 31, 2001.
The parties
and
Restated
Promissory
Note
dated
November
1,
2001
Agreement,
and
pledged
certain
shares
of
Covista
J.A. 1849.
and
may
apply
against
the
purchase
price
J.A. 1852.
the
independent appraiser .
commercially reasonable.
shall
be
deemed
to
be
J.A. 82.
J.A. 1872.
J.A. 554.
of
Covista
stock
subject
$7,924,332.
to
the
Pledge
Agreement
at
J.A. 1544-
45. Based on this advice, Burns delayed selling the Covista stock
in April.
At Burnss request, Bregman updated the April 15, 2002 report
on August 12, 2002, and valued the Covista stock at $5,635,403.
That
same
submitted
day,
to
Burns,
American
with
the
Stock
assistance
Transfer
the
of
John
Rachlin,
original
stock
due
under
the
Note,
Burns
commenced
suit
against
the
The
the
sale
of
the
collateral
was
As to
commercially
any theory of their own as to the stock value, but instead relied
solely on attacking the Valuation Services report and Bregmans
testimony.
The
district
court
found
Bregmans
testimony
of
due
the
Note
and
entered
judgment
against
the
II.
The Borrowers first argue that Burns failed to dispose of the
Covista stock in accordance with section 9-610 of the New York
Uniform Commercial Code (NY UCC).
complied
with
section
interpretation.
We
interpretation de novo.
9-610
review
is
a
question
district
of
statutory
courts
statutory
N.Y. U.C.C.
Id. 9-610(c)(2)
some
traditional
indicia
of
sale,
including
Reply Brief
of Appellants at 7.
Neither section 9-610 nor any other provision of the NY UCC
points to the limited view of the phrase private disposition
suggested by the Borrowers.*
Id.
9-610(b) (emphasis
terms
reasonable.
of
any
disposition
Except
for
of
the
collateral
requirement
be
of
commercially
commercial
reasonableness,
however,
the
time,
place,
and
terms
of
Id.
9-601(a).
In this case, Burns took absolute title to the Covista stock
for an independently appraised value and applied that value to
reduce the debt under the Note.
the sale method with respect to the Covista stock afforded to Burns
and agreed to by the parties under the Pledge Agreement.
Accord
moreover,
that
the
time,
place,
and
terms
of
Burnss
Mem.
Trust Co., 299 N.Y.S. 418, 420-29 (Sup. Ct. 1937) (finding no
private sale where pledgee made entries on books showing transfer
of collateral and credit upon the pledgors notes because, in part,
pledge agreement did not expressly authorize the pledgee to retain
the collateral at a fair value or at an appraised value and apply
the proceeds on the loan).
stock sale method provided under the Pledge Agreement and the time,
place and terms of the disposition was commercially reasonable, we
10
Brower, 534 N.W.2d 317 (Neb. 1995), the secured creditor, unlike
Burns,
failed
consideration.
to
transfer
title
to
himself
for
valuable
district
courts
conclusion,
furthermore,
does
not
11
To proceed under
Mitchell, 464 N.Y.S.2d 96, 97 (Sup. Ct. App. Div. 1983) (finding in
the absence of written notice to the debtor that the court may not
imply the creditor elected to take the collateral in satisfaction
of the debt under section 9-620).
In
addition,
the
proposal
and
consent
prerequisites
to
whereas section
9-610
the
affords
debtor
reasonableness standard.
the
protection
of
commercial
12
III.
The Borrowers next claim the district court should not have
admitted
the
testimony
of
Burnss
expert,
Russell
Bregman,
13
careful
consideration,
the
district
court
admitted
excessive
rates
of
error,
have
no
standards
for
their
TFWS, 325
14
Borrowers
challenge
to
Bregmans
qualifications
is
IV.
The Borrowers next argue that the district court should not
have relied on Bregmans actual sales valuation to determine
Burnss damages.
15
assert that one of the three sales was never consummated and,
therefore, was not properly relied upon in an actual sales
valuation.
Whether
the
district
court
properly
relied
on
Bregmans
F.2d
omitted).
414,
418
The
(4th
court
Cir.
will
1975)
not
(internal
disturb
[a
quotation
district
marks
courts]
be
rejected
as
clearly
erroneous
when
although
there
is
16
Id.
Revision sold its stock because Gold & Appel was in a very severe
cash squeeze because of the market decline, and we needed cash.
We
Revision
was
valuation.
an
unwilling
seller
in
the
context
of
stock
stock valuation, nor did his testimony show that Revision was an
unwilling seller in that context.
J.A. 982-83.
erred
consummated.
in
relying
upon
sale
that
was
never
actually
17
Therefore,
of
Borrowers
Directors
but
offer
reason
no
was
not
to
ultimately
conclude
that
consummated.
reliance
on
The
this
V.
Finding no merit in any of the grounds raised by Appellants,
we affirm.
AFFIRMED
18