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Dubinsky v. Mermart, LLC

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Submitted: January 12, 2010

Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY,*fn1 District Judge.

John Dubinsky, William Stern, Alvin Siteman, Eldon Schoenberg, David Rasch, and Jack Cregan (“Subordinate Bondholders”) invested in a refinancing venture for a real estate development. They sued the developer of the project, Mermart, L.L.C. (“Mermart”), alleging breach of contract and demanding equitable accounting for failure to pay interest under the financing documents, as well as alleging unjust enrichment, negligence, and fraudulent misrepresentation based on alleged representations that the project was free from environmental hazards. The district court*fn2 dismissed the contract claims, finding that the Subordinate Bondholders failed to obtain written consent of UMB Bank, N.A. (“UMB Bank”), the Senior Mortgagee, as required by the financing documents. The district court also dismissed the negligence, unjust enrichment, and fraudulent misrepresentation claims because the economic loss doctrine precluded recovery. For the following reasons, we affirm.

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