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Kinzel v. Bank of America

United States Court of Appeals, Sixth Circuit

March 2, 2017

Richard L. Kinzel, Individually and as Trustee of the Richard L. Kinzel Revocable Trust; Judith A. Kinzel, Individually and as Trustee of the Judith A. Kinzel Revocable Trust, Plaintiffs-Appellants,
v.
Bank of America, et al., Defendants, Merrill Lynch Bank U.S.A.; Merrill Lynch, Pierce, Fenner and Smith, Inc.; Merrill Lynch Bank & Trust Company; Bank of AmericaCorporation, Defendants-Appellees.

          Argued: January 25, 2017

         Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:10-cv-02169-Jeffrey James Helmick, District Judge.

         ARGUED:

          W. Patrick Murray, MURRAY & MURRAY, CO., L.P.A., Sandusky, Ohio, for Appellants.

          Matthew A. Fitzgerald, MCGUIREWOODS LLP, Richmond, Virginia, for Appellees.

         ON BRIEF:

          W. Patrick Murray, Dennis E. Murray, Jr., William H. Bartle, MURRAY & MURRAY, CO., L.P.A., Sandusky, Ohio, for Appellants.

          Matthew A. Fitzgerald, Lena L. Busscher, MCGUIREWOODS LLP, Richmond, Virginia, for Appellees.

          Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

          OPINION

          BOGGS, Circuit Judge.

         The ticker symbol for Cedar Fair Entertainment Company- operator of Cedar Point and other amusement parks-is, fittingly, "FUN, " and it thus reveals little about the nature of the collateral-liquidation dispute presently before us.

         In April 2008, Richard Kinzel, then CEO of Cedar Fair, borrowed nearly $8, 000, 000 from Merrill Lynch to finance his exercise of FUN stock options and to pay the estimated income and payroll taxes that would be due immediately upon exercise. To secure the loan, Kinzel pledged as collateral various assets, including the shares of FUN that he would be acquiring, and Kinzel entered into a Loan Management Account (LMA) agreement that allowed Merrill Lynch, "in its sole discretion and without prior notice, " to "liquidate" the collateral upon any of twelve events, including "if the value of the . . . collateral is in the sole judgment of [Merrill Lynch] insufficient."

         The stock market then crashed. Along the way, the market value of FUN tumbled from the exercise price of $23.19 per share in April 2008 to $6.99 per share on March 2, 2009. Having set a $7.00-per-share "trigger" to liquidate shares of FUN, the Merrill Lynch account managers responsible for Kinzel's account began selling off shares on March 3, 2009, without advance notice to Kinzel and without first making demand upon Kinzel for repayment of the loan.

         Upset that his long-time bank would sell his shares of FUN even though he was "doing everything right, " Kinzel (and his wife, both individually and as trustees of trusts in their names) sued Merrill Lynch (and Bank of America, which acquired Merrill Lynch in 2009) on various theories, including breach of contract and breach of the covenant of good faith and fair dealing. The Kinzels now appeal two district-court decisions: the court's denial of leave to file a third amended complaint to reassert a breach-of-contract claim that did not survive a previous motion to dismiss, and the court's final judgment in favor of Merrill Lynch on the breach-of-good-faith claim, which the court entered following a bench trial on that claim only. For the reasons that follow, we affirm.

         I

         Kinzel's Loan ...


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