FDIC v. SinghFDIC v. Singh
Thomas A. Cox, with whom Mary Ann E. Rousseau and Friedman & Babcock were on brief, for appellee.
*Of the District of Massachusetts, sitting by designation.
I. BACKGROUND
On December 23, 1985, Bandon Associates, a general partnership, executed and delivered a promissory note (the 1985 Note) in the principal amount of $1,050,000 to Patriot Bank, N.A. As collateral, Bandon gave the bank a mortgage on property it held in Maine. Both the 1985 Note and the mortgage deed were signed on Bandon‘s behalf by the four appellants as Bandon‘s sole general partners. The quartet also executed and delivered, on the same date, an unconditional guaranty of Bandon‘s obligations (the Guaranty). By the terms of that document, the signers “jointly and severally . . . unconditionally guarantee[d]” all liabilities of Bandon Associates to Patriot Bank “now existing or hereafter arising, regardless of how they arise or by what
On April 6, 1987, Bandon entered into a written agreement (the Agreement) with Patriot Bank to revise the terms of the 1985 loаn. The arrangement involved substituting a new note (the 1987 Note) for the old note. The 1987 Note was in the same face amount, but provided for a fixed interest rate, an amortization schedule, and a prepayment penalty. It was signed by the four appellants on Bandon‘s behalf and “individually.” It also contained an assurance that the Bank would “look solely to its [c]ollateral for satisfaction of the [o]bligations of Borrower or under any documents or undertaking given as security herefor and not to thе personal assets of any partner, General or Limited.” At the same time, Bandon and Patriot jointly executed an emendatory instrument (the Amendment) which tied the security instruments into the 1987 Note, reaffirmed them, and stated that: “The Mortgage, the Assignment, the Guaranty, and the Financing Statement . . . shall remain in full force and effect and all the terms thereof are hereby ratified and confirmed, by the parties hereto.” Although Bandon and its principals were represented by counsel, the bank‘s lawyers were the chiеf architects of the documents.
Soon thereafter, Patriot Bank merged with Bank of New England (BNE). On January 6, 1991, the Comptroller of the Currency determined that BNE was insolvent and appointed the FDIC as receiver. The New Bank of New England (NBNE) was created,
Meanwhile, Bandon was unable to meet its payment obligations under thе 1987 Note. On February 13, 1991, NBNE commenced a civil action to foreclose the mortgage in the United States District Court for the District of Maine. It simultaneously brought an action against the appellants, as individuals, alleging that each of them was liable under the Guaranty for Bandon‘s default. While the cases were pending, the FDIC dissolved NBNE and, as receiver, became the substitute plaintiff in both actions.2
In time, the district court granted the FDIC‘s dispositive motion in the guaranty action, invoking the D‘Oench, Duhme doctrine, see D‘Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 460 (1942), and the statute that largely codifies the doctrine.3
II. A THUMBNAIL SKETCH
Appellants theorize that the non-recourse provision in the 1987 Note conflicts with both the Guaranty and the reaffirmation of the Guaranty; and that, under applicable law, the conflict should be resolved in favor of the 1987 Note. In their view, the judgment below should be reversed or, alternatively, vacated and the case remanded for trial regarding the effect of the non-recourse provision.4
The yardstick by whiсh we must measure the cogency of appellants’ contentions is not in doubt. “Summary judgment is appropriate when the record reflects ‘no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.‘” Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 351 (1st Cir. 1992) (quoting
Although a dispute over the meaning of a contract is often a dispute about a matеrial fact, summary judgment is not necessarily foreclosed in such a situation. See Allen, 967 F.2d at 698. In some circumstances, “[t]he words of a contract may be so clear themselves that reasonable people could not differ over their meaning.” Boston Five Cents Sav. Bank v. Secretary of Dep‘t of HUD, 768 F.2d 5, 8 (1st Cir. 1985). This is such an instance: here, long-standing principles of Massachusetts contract law compel us to conclude that the non-recourse provision in the 1987 Note neither trumps the plain language of the Guaranty nor creates an ambiguity in the contract documents.
III. ANALYSIS
We begin by reviewing applicable state law. We then apply that law, explain how federal law is supportive of the result that we reach, and address appellants’ remaining counter-arguments.
A.
The instruments at issue here state that they are to be governed by, and construed in accordance with, the law of Massachusetts. Under Massachusetts law, when several writings evidence a single contract or comprise constituent parts of a single transaction, they will be rеad together. See Chelsea Indus., Inc. v. Florence, 260 N.E.2d 732, 735 (Mass. 1970); see also Ucello v. Cosentino, 235 N.E.2d 44, 47 (Mass. 1968) (holding that the parties’ intent “must be gathered from a fair construction of the contract as a whole and not by special emphasis upon any one part“); Chase Commercial Corp. v. Owen, 588 N.E.2d 705, 707 (Mass. App. Ct. 1992) (construing a guaranty and contemporaneous loan and security agreements as part of one transaction and reading them together despite the fact that the guaranty did not incorporate the other documents by reference).
“The question of whether a contract term is ambiguous is one of law for the judge.” Allen, 967 F.2d at 698; accord Boston Five Cents Sav. Bank, 768 F.2d at 8;
B.
Notwithstanding appellants’ unremitting effort to overshadow the Guaranty by a single-minded focus on the 1987 Note‘s non-recourse provision, we discern no ambiguity here. The non-recourse provision unequivocally refers to the “Obligations of Borrower,” namely, Bandon, and to the “personal assets of any partner.” (Emphasis supplied.) The status of guarantor is obviously not implicated either by the word “Borrower” or by the allusion to “any partner.” Any mention of, or reference to, the appellants qua guarantors is conspicuously lacking.
On the other hand, the language of the Guaranty is plain as a pikestaff. The signatories “unconditionally guarantee[d]” all liabilities “now existing or hereafter arising.” Nothing in the document package indicates that the parties later intended to nullify the Guaranty or to restrict its sweep. Indeed, the parties took pains in the 1987 Amendment to reaffirm the Guaranty, thus leaving it in full flower. We believe that, by executing the Guaranty in addition to the partnership obligation, and by thereafter reaffirming it in
In an effort to stem this inexorable tide, appellants invite us to infer a construction that would render an express clause in the documents nugatory. Such an invitation flies in the teeth of Massachusetts law, which directs courts to give reasonable effect to each provision of an agreement wherever feasible. See J.A. Sullivan Corp. v. Commonwealth, 494 N.E. 2d 374, 378 (Mass. 1986); McMahon v. Monarch Life Ins. Co., 186 N.E.2d 827, 830 (Mass. 1962). “It is a canon of construction that every word and phrase of an instrument is if possible to be given meaning, and none is to be rejected as surplusage if any other course is rationally possible.” Tupper v. Hancock, 64 N.E.2d 441, 443 (Mass. 1946) (citation omitted). Because appellants’ reading of the documents would render the Guaranty and the reaffirmation of it surplusage and would do so in the utter absence of any manifest necessity for so drastic an outcome5 we cannot accept it.
Moreover, Massachusetts law embraces the maxim “expressio unius est exclusio alterius.” Chatham Pharmaceuticals, Inc. v. Angier Chem. Co., 196 N.E.2d 852, 854-55 (Mass. 1964). That maxim applies as forcibly to exceptions to an obligation as to enumerations of the objects embraced by a contract. See id. Here, the Amendment lists a number of particular alterations in the security instruments without once mentioning a nullification or diminution of the liabilities assumed under the Guaranty. In these circumstances, the parties’ failure to provide expressly for modification of the Guaranty leaves us nо choice but to give effect to the Guaranty‘s provisions. Courts should not attempt to “accomplish by judicial fiat what [a party] neglected to achieve contractually.” RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 204 (1st Cir. 1987).
C.
The continued enforceability of the Guaranty, according to its tenor, is not only dictated by state law and by the incidence of clear and unambiguous language; it is also suggested by the spirit, if not the letter, of the D‘Oench, Duhme doctrine.6 As we have said, appellants’ basic thesis is that the non-recourse provision of the 1987 Note implies an intent to defenestrate the Guaranty. We think that nullification by implication transgresses the principles animating the D‘Oench, Duhme doctrine, both in its common law and statutory variants. That doctrine is designed to “help the FDIC accurately and speedily determine an insolvent bank‘s value.” Bateman v. FDIC, 970 F.2d 924, 928 (1st Cir. 1992); accord Commerce Federal Sav. Bank v. FDIC, 872 F.2d 1240, 1245 (6th Cir. 1989). The doctrine requires that agreements which would diminish or defeat the FDIC‘s interest in any asset acquired by it must fulfill certain requirements. See
Guaranty obligations are assets of the FDIC within the meaning of
Appellants’ proffer of extrinsic evidence to demonstrate thе parties’ ostensible intentions falls victim to many of the same considerations. Such evidence, not visible to FDIC officials on the face of the documents to which they must refer in determining the value of assets they have acquired, should not, under the D‘Oench, Duhme rationale, be permitted to contribute covertly to the diminution of these assets. See FDIC v. Merchants Nat. Bank, 725 F.2d 634, 637 (11th Cir.) (noting
D.
Appellants advance three additional asseverations. None of them suffices to carry the day.
First, using prior U.C.C. 3-119 as a springboard, and noting that Massachusetts has adopted the Uniform Commercial Code, see
Next, appellants claim that the loan documents should be construed against the FDIC because the lender drafted them. But, this argument is a mere heuristic. Documents should be construed against the drafter only when the questioned languаge, together with the circumstances surrounding its use, creates some cognizable uncertainty as to intended meaning. See Merrimack Valley Nat‘l Bank v. Baird, 363 N.E.2d 688, 690 (Mass. 1977); Aldrich v. Bay State Constr. Co., 72 N.E. 53, 54 (Mass. 1904);
Appellants’ last argument completely contradicts their original premise. Having unsuccessfully maintained that the 1987 Note and the Guaranty are irreconcilably inconsistent with one another, they shift gears in their reply brief, maintaining, for the first time, that the two documents are unnecessarily duplicative (in other words, consistent with one another). To this end, they cite Seronick v. Levy, 527 N.E.2d 746, 749 (Mass. App. Ct.), rev. denied, 530 N.E.2d 797 (Mass. 1988), for the broadcast proposition that, where the makers of a note also sign as guarantors, the guaranty is surplusage and, hence, unenforceable. Because appellants signed both the 1987 Note and the Guaranty, they argue, the Guaranty is excess baggage and the FDIC cannot proceed against them under it.
The facts of this case fail to support such an overgeneralized argument. Because the Guaranty operates to hold appellants individually responsible for Bandon‘s liabilities to the mortgage lender while the 1987 Note blocks recourse to the personal assets of partners other than the appellants, the Guaranty is hardly surplusage. Moreover, the Guaranty is
We need go no further. Where, as here, a “transaction is commеrcial, the principals practiced and represented by counsel, and the contract itself reasonably clear, it is far wiser for a court to honor the parties’ words than to imply other and further promises out of thin air.” Mathewson Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 856 (1st Cir. 1987) (applying Massachusetts law). On that basis, we are fully satisfied that we should not venture to rewrite the lender/borrower/guarantor agreements that underlie this controversy. We are equally satisfied that, as written, the agreements are clear and unambiguous. Construed according to their tenor, they warrant summary judgment in the FDIC‘s favor.
Affirmed.
I concur in the court‘s judgment, but write separately because I am unable to accept the court‘s conclusion that there is in fact no conflict between the 1987 Note and the Guarantee. In my view this issue should not be resolved without an evidentiary hearing. The result adopted by the court can be reached by a different route, however.
Congress opted for certainty when it enacted the categorical recording scheme еmbodied in 1823(e). Langley v. FDIC, 484 U.S. 86, 95 (1987). The scope of a court‘s inquiry into the enforceability of an agreement is limited, and the court‘s conclusion depends entirely on the agreement‘s compliance or noncompliance with the statute. See id. at 94-95. The statute provides that any agreement that “tends to diminish or defeat the interest of the [FDIC] in any asset acquired” as receiver is invalid against the FDIC, unless the agreement:
(1) is in writing, (2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution, (3) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) has been, continuously, from the time of its execution, an official record of the depository institution.
In this case, the district court concluded correctly that the 1985 Guaranty was an “asset” of the FDIC within the meaning of 1823(e). FDIC v. Virginia Crossings Partnership, 909 F.2d 306, 312 (8th Cir. 1990); FDIC v. P.L.M. Int‘l, 834 F.2d 248, 253 (1st Cir. 1987). Therefore, in order to defeat or impair the
The statute, among other things, requires both that the board or loan committee approve the agreement and that such approval be reflected in the minutes of the board or committee meeting.
The record is devoid of evidence supporting appellants’ contention that the board or loan committee approved a release or modification of the guarantors’ liability. At oral argument, appellants conceded that they could point to no document and no affidavit to demonstrate the requisite approval. But the record is not silent on this issue. Indeed, far from reflecting a purported release, both the Loan Committee Minutes and the Loan Approval Sheet indicate precisely the opposite understanding: they refer to the four appellants, by name, as “guarantors” of the new Note. Moreover, the record demonstrates that the continuing personal guaranties of the appellants were significant factors in approving the loan. A risk analysis report, attached
There is no genuine issue of material fact and the FDIC is entitled to judgment as a matter of law. I therefore join in affirming the judgment of the district court.
Notes
No agreement which tends to diminish or defeat the interest of the [FDIC] in any asset acquired by it under this section or section 1821 of this title, either as security for a lоan . . . or as receiver of any insured depository institution, shall be valid against the [FDIC] unless such agreement
- is in writing,
- was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
- was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
- has beеn, continuously, from the time of its execution, an official record of the depository institution.
If there is outright contradiction between [a separate writing and a negotiable instrument], as where the note is for $1,000 but the accompanying mortgage recites that it is for $2,000, the note may be held to stand on its own feet and not to be affected by the contradiction.
U.C.C. 3-119 comment 3 (1964). While the corresponding section of revised Article 3 (adopted after the documents at issue here were drafted) does not retain this comment, seе U.C.C. 3-117 (1990), the prior version still persists in the Commonwealth. See