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Thomas & Wong General Contractor v. The Lake Bank, N.A.: US District Court : BANKS - inter-lender credit agreement Statute of Frauds (513.33) final accomodation

1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Thomas & Wong General Contractor,
a Brunei Darussalam corporation,
Plaintiff,
MEMORANDUM OPINION
v. AND ORDER
Civ. No. 06-515 ADM/RLE
The Lake Bank, N.A.,
d/b/a The Lake Bank,
Defendant.
______________________________________________________________________________
Mark J. Kallenbach, Esq., Kallenbach Law Office, Minneapolis, MN, argued on behalf of
Plaintiff.
Stephanie A. Ball, Esq., Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, argued on
behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
On September 26, 2007, the undersigned United States District Judge heard oral
argument on Plaintiff Thomas & Wong General Contractors (Thomas & Wong) Motion for
Summary Judgment, or in the Alternative for Partial Summary Judgment [Docket No. 63] and
Defendant The Lake Bank, N.A.s (Lake Bank) Motion for Summary Judgment [Docket No.
70]. For the reasons set forth below, Thomas & Wongs Motion is denied and Lake Banks
Motion is granted.
II. BACKGROUND1
Beginning in 1999, Lake Bank made loans to Beardmore Investments, Inc. (Beardmore
Investments). Beardmore Aff. [Docket No. 66] 8. At all relevant times, John Beardmore
2
(Beardmore) was the president, a director, and sole shareholder of Beardmore Investments and
BDV Investments, Inc. (BDV). Id. 3, 5. Beardmore Investments and BDV transacted
business with Thomas Kell, III (Kell), the President of Lake Bank from September 1999 until
mid-2003. Id. 7; Kell Aff. [Docket No. 77] 1. As of January 17, 2003, Beardmore
Investments owed 0,505 to Lake Bank. Beardmore Aff. Ex. A. Lake Banks loans to
Beardmore Investments were secured by a second mortgage on Beardmores Arizona home, a
1999 Mercedes vehicle, a 2000 Mystic Ski Boat with a shorestation and lift, a twenty-two
percent interest in Founders Mezzanine Stock Fund, and Superior Financial Holding, Inc.
(SFH), stock (collectively, these assets are the Beardmore Investments Collateral). Id. 13.
In February and March of 2003, Beardmore informed Kell that he was negotiating a
financing package with Thomas & Wong, and that Beardmore Investments would use the
anticipated loan proceeds from Thomas & Wong to pay Beardmore Investments debt to Lake
Bank. Beardmore Aff. 10, 14. Beardmore orally instructed Kell that upon receipt of a
0,000 wire transfer, Lake Bank was to assign the Beardmore Investments Collateral to
Thomas & Wong. Id. 14-15. On March 3, 2003, Kell caused a Lake Bank Employee to fax a
one-page document entitled Wiring Instructions for the Lake Bank NA to Thomas & Wongs
attorney. Id. Ex. B. The document provided Beardmores account number at Lake Bank. Id.
Ex. B. The document is not on Lake Banks letterhead and has an illegible signature on behalf
of The Lake Bank. Id. Ex. B.
On March 6, 2003, BDV and Thomas & Wong entered into a Promissory Note whereby
Thomas & Wong loaned BDV ,500,000 with interest thereon at the rate of twenty five
percent (25%) as a flat fee and paid in one installment on or prior to May 5, 2003 . . . .
3
Id. Ex. C. The Promissory Note provided for a ,000,000 late fee and liquidated damages of
,000 per day if BDV failed to timely repay the loan. Id. Ex. C. The collateral for the
Promissory Note was six containers of precious metal dor located in Lordsburg, New Mexico.
Id.; 1st Ball Aff. [Docket No. 74] Ex. 8. The Promissory note was personally guaranteed by
Beardmore and William Cortegiano, BDVs vice president. Beardmore Aff. Ex. C.
On the morning of March 12, 2003, Kell talked by telephone for approximately fifteen
minutes with Edward Tarapaski (Tarapaski) and Jan Wallace (Wallace), Thomas & Wongs
agents. Tarapaski Dep. (Tarapaski Aff. [Docket No. 86] Ex. A) at 162-163; Pl.s Mem. [Docket
No. 65] of L. in Supp. of Pl.s Mot. for Summ. J. at 4. Kell, Tarapaski, and Wallace discussed
arrangements for Thomas & Wong to wire money to the Beardmore account specified in Lake
Banks March 3, 2003, fax. Tarapaski Dep. at 162-163. When Kell asked if Thomas & Wong
would send the money right away, Wallace responded that Thomas & Wong need[ed]
something in writing from Lake Bank to verify the collateral again and to verify that ownership
would transfer to Thomas & Wong upon receipt of the funds. Id. at 163. At 9:23 a.m., Wallace
received a faxed letter at Le Vanishe, her place of business, purporting to be from Lake Banks
fax number. Id. at 166; Tarapaski Aff. 9; 1st Kallenbach Aff. Ex. C. The letter, entitled
Collateral Transfer to Thomas and Wong General Contractor, states:
Please be advised upon the receipt of wired funds The Lake Bank will assign the
following collateral to Thomas and Wong General Contractor.
A second mortgage on Mr. Bea[r]dmores Arizona home, the home is appraised at
,000,000 with a first mortgage of 9,997. Equity ,000,000.
A 1999 Mercedes and a 2000 18 ft. Mystic Ski Boat with a Shorestation and lift total
value of ,000.
A 22% interest in Founders Mezzanine Stock Fund estimated value 0,000.
2 Kell and Lance Schwanke, a Lake Bank employee responsible for commercial loans in
March 2003, aver they are unfamiliar with the March 12, 2003, letter, and they do not recognize
the handwriting on the fax. Kell Aff. 2-4; 1st Schwanke Aff. [Docket No. 73] 3-5.
4
[D]ividends in 2002 of ,000. Superior Financial Holdings, Inc. stock value 0,000.
We understand the 0,000 wire will be transferred today.
1st Kallenbach Aff. Ex. C. The letter concludes with an illegible signature on behalf of The
Lake Bank NA. Id. Ex. C. After Wallace received the faxed letter, Tarapaski testified he and
Wallace discussed it with Kell. Tarapaski Dep. at 166.2 Later that day, Thomas & Wong wired
0,000 to the Beardmore account at Lake Bank. 1st Kallenbach Aff. Ex. D. On April 1, 7,
and 24, 2003, Thomas & Wong wired additional amounts totaling 0,000 to the same account.
Compl. [Docket No. 1] 8. Lake Bank did not transfer documents regarding the Beardmore
Investments Collateral until June 2004.
BDV defaulted on the March 6, 2003, Promissory Note by failing to repay ,500,000
and interest to Thomas & Wong by May 5. 1st Ball Aff. Ex. 3 at BLU06782. On July 1, 2003,
Thomas & Wong initiated litigation against BDV in New Mexico state court seeking a judgment
of ,090,000. See Thomas & Wong Contractors v. BDV Investments, Inc., Case No. D-623-
CV-200300024 (N.M. Hidalgo County 6th Jud. Dist.). On July 10, Thomas & Wong obtained a
writ of execution providing for repossession of BDVs gold metal dor located in New Mexico.
1st Ball Aff. Ex. 5. In attempting to levy on the writ, Thomas & Wong discovered that the gold
dor had been moved to Arizona. 2d Ball Aff. [Docket No. 82] Ex. 1 at BLU04061.
Accordingly, on July 18, 2003, Thomas & Wong filed a second lawsuit against BDV and related
parties in Arizona state court (hereinafter the first Arizona litigation) alleging breach of
contract and fraud, and seeking attachment of the gold metal dor. 1st Ball Aff. Ex. 3. On
5
November 21, 2003, Thomas & Wong obtained a default judgment of ,669,000 plus accruing
penalties and interest against BDV for failure to appear and answer the Arizona complaint. 2d
Ball Aff. Ex. 2. However, Thomas & Wong collected only ,000 on the judgments in the New
Mexico and first Arizona litigations. 2d Kallenbach Aff. [Docket No. 79] 8.
While the New Mexico and the first Arizona litigation against BDV proceeded, Thomas
and Wongs former attorney Gary Blume (Blume) sent Lake Bank a September 5, 2003, letter
stating in part that [d]emand is hereby made for your surrendering of the collateral detailed in
the [March 12, 2003] letter . . . . We would expect confirmation of your retention of the
collateral and your intent to make these items available to my client for liquidation. Haugan
Aff. [Docket No. 72] Ex. 2. Todd Haugan (Haugan), an attorney for Lake Bank, alleges he
contacted Blume, who stated that Thomas & Wong would recoup the amounts owed by BDV by
means other than repossessing and selling the Beardmore Investments Collateral. Id. 8. In a
letter of December 15, 2003, Haugan informed Blume that Lake Bank would continue to
maintain collateral previously provided by John Beardmore, but will not deliver it to either BDV
Investments or Thomas & [W]ong Contractors until both parties agree in writing upon a
disposition of the subject collateral. Id. Ex. 3.
Correspondence between Thomas & Wong and Lake Bank continued into the spring of
2004. In February and March 2004, Haugan and Blume exchanged drafts of a proposed Release
and Indemnification Agreement providing Lake Bank would deliver evidence of title and liens to
the Beardmore Investments Collateral to Thomas & Wong. Id. Exs. 4-6. In return, Thomas &
Wong would defend, hold harmless, and indemnify Lake Bank against any claims asserted by
Beardmore. Id. Exs. 4-6. Ultimately, Thomas & Wong declined to execute the Release and
6
Indemnification Agreement. Id. 13.
In a letter of April 21, 2004, Blume informed Haugan that:
I am proceeding with the sale of the real property in Arizona and want to begin collecting
all other assets to begin the liquidation process. As such, send to my attention the deed,
and any title documents on assets the bank holds, along with the stock certificates that
were used as collateral on the long defaulted note. If you have obtained any additional
information on the location of the car and boat, I would appreciate having that also.
Id. Ex. 7. Haugan sent a letter dated April 28, 2004, to Clark Griffith (Griffith), BDVs
attorney, requesting that BDV authorize the transfer of evidence of title and liens to property to
Thomas & Wong. Id. Ex. 8.
By letter dated May 21, 2004, Blume provided Haugan a copy of a May 19, 2004, writ of
general execution that Thomas & Wong had obtained on the judgment in the first Arizona
litigation. Id. Exs. 10-11. On June 7, 2004, Haugan sent Blume original documents in
satisfaction of the writ, including a stock certificate representing Beardmores 200,000 shares of
common stock in SFH, certificate of title to the Mercedes motor vehicle, certificate of title to an
Ebbtide Runabout boat, and a quit claim deed from Lank Bank to Thomas & Wong regarding the
Arizona property. Id. Ex. 12.
On June 21, 2004, the Arizona real property was sold for ,640,000. 1st Kallenbach
Aff. Ex. I. This amount was 0,000,000 less than the ,000,000 appraised value specified in
the March 12, 2003, faxed letter. As of June 21, 2004, the amount due on the first mortgage was
,032,631, which was ,634 more than 9,997 figure specified in the March 12, 2003,
faxed letter. Id. Ex. I. ,655 in delinquent real estate taxes for the years 2001, 2002, and 2003
were deducted from the contract sales price. Pl.s Mem. in Supp. of Pl.s Mot. for Summ. J. at 8.
Thomas & Wong avers it was unable to take possession of the Mercedes or the ski boat.
7
Additionally, Thomas & Wong avers that the SFH stock and the Founders Mezzanine stock had
become worthless. According to the March 12, 2003, faxed letter, the car, boat, SFH stock, and
the Founders Mezzanine stock had a combined value of 7,000 on March 12, 2003.
On July 12, 2005, Thomas & Wong filed a lawsuit against Blume and Wallace in Arizona
state court (hereinafter the second Arizona litigation). See Thomas & Wong General
Contractor, Inc. v. Blume Law Firm, P.C., No. CV2005-051325 (Ariz. Superior. Ct. Maricopa
County). On August 10, 2007, the malpractice claims against Blume were dismissed pursuant to
a stipulated settlement of ,000. 2d Kallenbach Aff. 9. The claims against Wallace for
breach of fiduciary duty are still being litigated. Id. 10.
On February 7, 2006, Thomas & Wong initiated the instant litigation against Lake Bank.
The Complaint asserts claims for breach of contract, fraud, conversion, and bailee liability.
Thomas & Wong seeks 8,289 in damages from Lake Bank, based on the theory that Lake
Bank failed to timely deliver the Beardmore Investments Collateral and therefore is responsible
for: (1) the alleged 0,000 decrease in value of the Arizona real property from March 12,
2003, to June 21, 2004; (2) the ,634 increase in the amount of the first mortgage from March
12, 2003, to June 21, 2004; (3) the alleged tax delinquency of ,655 on the Arizona real
property; (4) the alleged 7,000 decrease in value of the SFH and Founders Mezzanine stock
from March 12, 2003, to June 2004; and (5) Thomas & Wongs inability to realize any proceeds
of the alleged ,000 value of the car and ski boat as of March 12, 2003. Pl.s Mem. of Law in
Supp. of Pl.s Mot. for Summ. J. at 7-9.
8
III. DISCUSSION
A. Informal Motions to Strike
In their memoranda, both Thomas & Wong and Lake Bank request that certain materials
be stricken from the record. Thomas & Wong argues Lake Banks Motion for Summary
Judgment and supporting documents are untimely under Local Rule 7.1(b)s requirement that
moving papers must be filed at least 45 days prior to the hearing of a dispositive motion. D.
Minn. LR 7.1(b). This Court heard oral argument on September 26, 2007. Lake Bank filed its
Motion for Summary Judgment on Tuesday, August 14, 2007, which was 43 days before the
hearing. Lake Banks Motion therefore is untimely under Local Rule 7.1(b).
Local Rule 7.1(d) addresses untimely filing:
In the event a party fails to timely deliver and serve a memorandum of law, the Court
may strike the hearing from its motion calendar, continue the hearing, refuse to permit
oral argument by the party not filing the required statement, consider the matter
submitted without oral argument, allow reasonable attorneys fees, or proceed in such
other manner as the Court deems appropriate.
D. Minn. LR 7.1(d). Lake Banks counsel avers that at the suggestion of the Courts calendar
clerk, she proposed a modified briefing schedule so that the parties cross motions for summary
judgment could be argued on the same day. 3d Ball Aff. [Docket No. 91] 6. Lake Banks
counsel notified Thomas & Wongs counsel, who did not object until after Lake Bank filed its
moving papers. Id. The Court denies Thomas & Wongs request to strike Lake Banks moving
papers. Lake Banks proposed deviation from the briefing schedule was a convenience to the
Court, and Lake Bank gave notice to Thomas & Wongs counsel, who failed to object in a timely
manner. Thomas & Wong does not claim any prejudice from the minor deviation from the
deadlines of Local Rule 7.1.
9
In their memoranda, both parties request that certain affidavits be stricken from the
record. See Pl.s Mem. of L. in Oppn to Def.s Mot. for Summ. J at 8; Def.s Mem. [Docket
No. 81] of L. in Oppn to Pl.s Mot. for Summ. J. at 14-30. However, the Court finds that
consideration of these affidavits does not affect its analysis of the parties cross motions for
summary judgment. Therefore, the parties informal motions to strike affidavits from the record
are denied.
B. The Cross Motions for Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment shall issue if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in
the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party
may not rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
1. Lake Banks Motion for Summary Judgment
a. Authenticity of the March 12, 2003, Fax Letter
Lake Bank argues that all of Thomas & Wongs claims fail as a matter of law because
Thomas & Wong cannot establish the authenticity of the March 12, 2003, letter. Lake Bank
emphasizes the letter is not on Lake Banks letterhead, is signed generically by Lake Bank rather
10
than by an individual representative of Lake Bank, and that Lake Bank officers and employees
do not recognize the illegible signature. See Kell Aff. 2-4; 1st Schwanke Aff. 3-5.
However, the mechanically generated fax header lists Lake Banks fax number. 1st Kallenbach
Aff. Ex. C. Corroborative of the letters authenticity is Tarapaskis testimony that on March 12,
2003, Kell, then Lake Banks president, agreed to send such a letter to Tarapaski and Wallace.
Tarapaski Dep. at 163. Tarapaski also claims that after he and Wallace received the fax at Le
Vanishe, Kell followed up by asking them, Will you now release the money? Id. at 166.
Based on this testimony, a jury could find that Kell authorized the March 12, 2003, letter. There
is a genuine issue of material fact regarding whether the March 12, 2003, faxed letter is
authentic.
b. The Credit Agreement Statute of Frauds
i. The Credit Agreement Statute of Frauds Applies
Lake Bank argues that the credit agreement statute of frauds in Minn. Stat. 513.33
completely bars Thomas & Wongs claims. The statute provides that [a] debtor may not
maintain an action on a credit agreement unless the agreement is in writing, expresses
consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the
debtor. Minn. Stat. 513.33, subd. 2. For the credit agreement statute of frauds to apply, Lake
Bank must establish that: (1) the March 12, 2003, letter constitutes a credit agreement, and (2)
Thomas & Wong and Lake Bank qualify as a debtor and creditor, respectively, under the statute.
The first issue is whether the March 12, 2003, faxed letter, assuming it is authentic,
constitutes a credit agreement. Minn. Stat. 513.33 defines credit agreement as an
agreement to lend or forbear repayment of money, goods, or things in action, to otherwise extend
11
credit, or to make any other financial accommodation. Minn. Stat. 513.33, subd. 1. Case law
interpreting 513.33, which was enacted in 1984, is sparse. The leading case is the Minnesota
Supreme Courts 1992 decision in Rural American Bank v. Herickhoff, 485 N.W.2d 702 (Minn.
1992). There, a bank made separate farm loans to Mark Herickhoff (Mark) and his father, Ben
Herickhoff (Ben), that would allow Mark to plant acreage on his farm. Id. at 704. The banks
loan agreement file included a document stating that proceeds from Marks crops would be used
to pay Bens loan first. Id. The document was on bank letterhead, prepared by bank officials,
and signed by Mark and his wife. Id. However, the bank applied the proceeds to Marks loan
first. Id. The Minnesota Supreme Court held that the Banks alleged promise to apply proceeds
to Bens loan first is precisely the kind of financial accommodation intended to be covered by
the statute, and therefore the credit agreement statute of frauds applied. Id. at 706. The
Herickhoff court ultimately concluded that the writing satisfied the credit agreement statute of
frauds. Id. at 708.
The Minnesota courts have not directly addressed whether assurances between two
lenders, where the assurances involve the same borrower, constitute a credit agreement under
Minn. Stat. 513.33. Interpreting Colorados credit agreement statute of frauds, which is similar
to Minnesotas, the Colorado Supreme Court held that assurances from one lender to another
involving the same borrower constituted a credit agreement, even though the lenders were not in
a borrower-lender relationship with each other. Schoen v. Morris, 15 P.3d 1094, 1097-98 (Col.
2000). Other courts have also broadly construed state credit agreement statutes of frauds. See
e.g., Whirlpool Fin. Corp. v. Sevaux, 96 F.3d 216, 222-23 (7th Cir. 1996) (concluding that
promise to invest was a credit agreement under Illinois statute because debt financing was
12
contemplated).
The broad language of Minn. Stat. 513.33 reaches not only agreements to lend or
forbear repayment of money, but also any other financial accommodation. Pako Corp. v.
Citytrust, 109 B.R. 368, 377 (D. Minn. 1989) (cited in Herickhoff, 485 N.W.2d at 706). Here the
March 12, 2003, letter is inextricably intertwined with two credit agreements. The first credit
agreement is the agreement whereby Thomas & Wong loaned ,500,000 to BDV and BDV
agreed to repay the loan. The March 6, 2003, Promissory Note specified certain gold dor as
collateral. Around the same time as the execution of the Promissory Note, it appears that
Beardmore, on behalf of BDV, and Thomas & Wong orally agreed that the Beardmore
Investments Collateral held by Lake Bank would serve as additional collateral for the
Promissory Note between Thomas & Wong and BDV. Beardmore Aff. 14. Accordingly,
Beardmore avers he orally instructed Kell that when Thomas & Wong wired funds to
Beardmores Lake Bank account, Lake Bank was to transfer documents regarding the Beardmore
Investments Collateral to Thomas & Wong. Id. This oral agreement specifying additional
collateral is part and parcel of the credit agreement whereby Thomas & Wong loaned ,500,000
to BDV.
The second credit agreement addresses Lake Banks outstanding loans to Beardmore
Investments as of March 12, 2003. Those loans were secured by the Beardmore Investments
Collateral. The record shows that on March 12, 2003, Tarapaski and Wallace, acting as Thomas
& Wongs agents, requested that Lake Bank, a creditor of Beardmore Investments, transfer the
Beardmore Investments Collateral to Thomas & Wong upon Lake Banks receipt of funds wired
to Beardmores account. By requesting Lake Bank to transfer its collateral and forebear the
13
exercise of any remedies it may have regarding the collateral, Thomas & Wong sought a
financial accommodation from Lake Bank. Such a financial accommodation is a credit
agreement under Minn. Stat. 513.33.
The next issue is whether Thomas & Wong and Lake Bank qualify as a debtor and a
creditor with respect to the March 12, 2003, faxed letter. A creditor is defined as a person
who extends credit under a credit agreement with a debtor, and a debtor is defined as a
person who obtains credit or seeks a credit agreement with a creditor or who owes money to a
creditor. Minn. Stat. 513.33, subd. 1. For the purposes of the March 12, 2003, letter, Lake
Bank is a creditor because it held the Beardmore Investments Collateral as security for a loan to
Beardmore Investments. Thomas & Wong requested that Lake Bank transfer its collateral to
Thomas & Wong. Such a financial accommodation is a credit agreement under Minn. Stat.
513.33. Therefore, Thomas & Wong is a debtor under the statute because it sought a credit
agreement with a creditor. The March 12, 2003, letter constitutes a credit agreement and the
credit agreement statute of frauds applies.
ii. The March 12, 2003, Letter Does Not Satisfy the Statute of
Frauds
A credit agreement satisfies the statute of frauds if it is in writing, expresses
consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the
debtor. Minn. Stat. 513.33, subd. 2. The March 12, 2003, letter is in writing. It also
expresses consideration: Lake Bank promised to transfer the Beardmore Investments Collateral
to Thomas & Wong upon receipt of wired funds from Thomas & Wong. Although there is a
genuine issue of material fact regarding whether Lake Bank, the creditor, signed the document, it
is undisputed that Thomas & Wong did not sign the document. Therefore, the March 12, 2003,
14
letter does not satisfy Minnesotas credit agreement statute of frauds.
Alternatively, the March 12, 2003, letter fails to satisfy Minn. Stat. 513.33 because it
fails to include all the relevant terms and conditions of a collateral transfer agreement. For Lake
Bank to convey the Beardmore Investments Collateral, authorization from Beardmore
Investments was required. However, the March 12, 2003, letter lacks Beardmore Investments
written authorization for Lake Bank to transfer the Beardmore Investments Collateral.
Therefore, the March 12, 2003, letter fails to satisfy the statute of frauds in Minn. Stat. 513.33
and Thomas & Wongs breach of contract claim must be dismissed.
c. Fraud, Conversion, and Bailee Liability
Thomas & Wongs claims for fraud, conversion, and bailee liability also arise out of the
March 12, 2003, letter. Thomas & Wongs claims of promissory estoppel and unjust
enrichment, asserted for the first time in its summary judgment moving papers, also arise out of
the March 12, 2003, letter. See Pl.s Mem. of L. in Supp. of Pl.s Mot. for Summ. J at 14-15.
These claims are all barred by Minn. Stat. 513.33. See Minn. Stat. 513.33, subd. 2 ( A
debtor may not maintain an action on a credit agreement unless the agreement is in writing,
expresses consideration, sets forth the relevant terms and conditions, and is signed by the
creditor and the debtor.). Thomas & Wong cannot escape the credit agreement statute of frauds
by asserting alternative claims based on the same credit agreement. See Greuling v. Wells Fargo
Home Mortgage, Inc., 690 N.W.2d 757, 761-62 (Minn. Ct. App. 2005) (concluding that lack of
compliance with credit agreement statute of frauds barred claim of promissory estoppel). Lake
Banks Motion for Summary Judgment is granted.
15
2. Thomas & Wongs Motion for Summary Judgment
Having granted Lake Banks Motion for Summary Judgment, Thomas & Wongs Motion
for Summary Judgment is denied.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff Thomas & Wong General Contractors Motion for Summary Judgment,
or in the Alternative for Partial Summary Judgment [Docket No. 63] is DENIED;
and
2. Defendant The Lake Bank, N.A.s Motion for Summary Judgment [Docket No.
70] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: December 21, 2007.
 

 
 
 

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