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McGOVERN PLAZA JOINT VENTURE v. FIRST OF DENVER

No. 76-1327.

562 F.2d 645 (1977)

McGOVERN PLAZA JOINT VENTURE and Hugh J. McGovern, Plaintiffs-Appellants, v. FIRST OF DENVER MORTGAGE INVESTORS, an unincorporated association, B. F. Saul Real Estate Investment Trust, B. F. Saul Advisory Company, First National Advisors, Inc., John K. McCready, Clarence Liller, Jr., Richard Roe, Bernard Black and Allan Able (being fictitious names of the trustees of First of Denver Mortgage Investors), Mathew Miller, John Doe and William Smith (being the fictitious names of the trustees of B. F. Saul Real Estate Investment Trust), Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

Decided October 4, 1977.

Attorney(s) appearing for the Case

Jerald M. Schuman, Tulsa, Okl. (David W. Jackson of Schuman, Milsten & Jackson, Tulsa, Okl., and Thomas S. Smith, of Hopper & Kanouff, Denver, Colo., on the brief), for plaintiffs-appellants.

Leslie A. Nicholson, Jr., Washington, D. C. (James J. Sullivan, Shaw, Pittman, Potts & Trowbridge, Washington, D. C., and Martin S. Shore and Christian C. Onsager, Hellerstein, Hellerstein & Shore, Denver, Colo., on the brief), for B. F. Saul Advisory Co. and B. F. Saul Real Estate Investment Trust, defendants-appellees.

Kirk P. Brady, Denver, Colo. (Raymond B. Danks of Hughes & Dorsey, Denver, Colo., on the brief), for First of Denver Mortgage Investors, First Nat. Advisors, Inc., John K. McCready and Clarence Liller, Jr., defendants-appellees.

Before SETH, PICKETT and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The issue here is whether either a construction loan commitment, or a permanent loan commitment, purchased by a real estate developer in the normal course of business from a bona fide lender, is a "security" within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934. The trial court held that neither was a "security" within the meaning of those acts. We agree.

The plaintiffs brought the present action...

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