concurring in part and dissenting in part.
I concur in the decision to reverse the summary judgment that was entered in favor of the defendants. I do not believe on the record that was before the district judge that it was appropriate to rule, as a matter of law, that the Attards did not *383breach the guaranty agreement. I also believe, however, for the same reason, that it is inappropriate for this court to decide the breach issue in favor of the plaintiffs at this juncture. Once that decision is made the Attards are limited to affirmative defenses that would impact only the amount of the judgment plaintiffs might obtain.1
By holding that the letter accompanying the assignment did not constitute a breach of the duty to make the assignment free of all claims, the district court apparently felt no need to consider other defenses the Attards may have that would impact upon their liability including waiver by the plaintiffs to proceed under the assignment. As the record now stands before this court, it appears the plaintiffs proceeded to realize all of the monetary value possible from the failed company by the sale of its assets and now seeks what amounts to a deficiency judgment for the balance of the debt. By relying on the claim that the Attards breached the assignment agreement, the plaintiffs arguably put themselves in a better position than they would have been had there been an unqualified assignment. This seems to me to be anomalous, and I would remand for further development of the record and trial if necessary.
. I agree with Judge Gilman’s conclusion that the Attards may assert affirmative defenses on remand. I do "not agree, however, that they are limited to defenses only as to damages.