Federal Deposit Insurance v. Elder Care Services, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1729

FEDERAL DEPOSIT INSURANCE CORPORATION,
AS LIQUIDATING AGENT OF FIRST MUTUAL BANK FOR SAVINGS,

Plaintiff, Appellee,

v.

ELDER CARE SERVICES, INC. and
FRANK C. ROMANO, JR.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

William T. Harrod III with whom Harrod Law Offices was on briefs

for appellants.
Daniel H. Kurtenbach, Counsel, with whom Ann S. Duross, Assistant

General Counsel, and Richard J. Osterman, Jr., Senior Counsel, were on

brief for appellee.

April 24, 1996

BOUDIN, Circuit Judge. In January 1987, Brandon Woods

of Glen Ellyn, Inc., a wholly owned subsidiary of Elder Care,

Inc., borrowed $10.1 million from First Mutual Bank for

Savings located in Boston. The purpose was to finance the

purchase by Brandon Woods of the site of a former seminary in

Glen Ellyn, Illinois, and the development of the property

into a retirement community. In due course the property was

acquired by Brandon Woods for $4.5 million.

The bank loan was secured by a mortgage on the seminary

property and by two guaranties from third parties in favor of

the bank--one from Elder Care, Inc., and the other from its

president Frank Romano in his personal capacity. Both

guarantees contained broad waiver provisions, including

waivers of any requirements of "diligence or promptness" and

(to the extent permitted by law) waivers of "any defense of

any kind." The guaranties provided that they were governed

by Massachusetts law.

The loan was to be repaid by January 30, 1988, a date

later extended to October 28, 1988, but Brandon Woods

defaulted. After a delay to allow Brandon Woods time to

refinance (which it failed to do), the bank on June 27, 1989

brought a foreclosure action against Brandon Woods in an

Illinois state court. On December 26, 1990, the court

entered a foreclosure judgment, fixing the amount then owed

at just over $12.8 million, including the unpaid balance,

-2-
-2-

interest and attorney's fees. The court ordered that the

property be sold on February 5, 1991.

On February 5, 1991, Brandon Woods filed a voluntary

bankruptcy petition, blocking the sale of the property under

the automatic stay provision of the Bankruptcy Code. 11

U.S.C. 362(a)(1). On April 8, 1991, the bankruptcy court

denied the bank's motion to lift the stay, finding that the

property if fully developed would be worth about $13 million,

just exceeding the amount then claimed by the bank. In

August 1991, the bankruptcy court granted a renewed motion to

lift the stay after Brandon Woods failed to gain additional

financing. On November 23, 1993, after an unexplained two-

year delay, the seminary property was sold at a foreclosure

sale for $300,000, all of which went to satisfy a

construction firm's prior lien.

In the meantime, on May 24, 1991, the bank filed the

present action in Massachusetts state court against the two

guarantors. A month later the bank failed and the Federal

Deposit Insurance Corporation ("FDIC") was appointed

liquidating agent. The FDIC then removed the case to federal

court. In April 1993, the district court granted summary

judgment in favor of the FDIC as to liability.

In May 1994, the present case was reassigned to a new

district judge. On June 8, 1995, the district court granted

the FDIC's motion for summary judgment as to damages, and on

-3-
-3-

August 4, awarded the FDIC $15,316,887.33. This represented

the then-outstanding balance claimed by the FDIC of

$16,416,719.31 (for principal, plus interest and attorney's

fees) less specific maintenance expenses incurred by Brandon

Woods, claimed by it as an offset, and conceded by the FDIC.

The two guarantors now appeal, claiming that there was a

material issue of fact precluding summary judgment.

In substance, the guarantors say that there is a gross

disparity between estimates of the property's value--notably

the $13 million estimate made by the bankruptcy court--and

the $300,000 sale price obtained at the foreclosure sale. In

the guarantors' view, this discrepancy--coupled with the

unexplained two-year delay in the sale--gives rise to a

factual dispute about whether the FDIC acted in good faith in

liquidating the security. Bad faith or fraud, the guarantors

argue, would bar or diminish the FDIC's recovery.

Massachusetts law does permit a guarantor to waive

defenses, see Shawmut Bank, N.A. v. Wayman, 606 N.E.2d 925,

927 (Mass. App. Ct. 1993), but probably such a waiver could

not immunize bad faith or fraud. See Pemstein v. Stimson,

630 N.E.2d 608, 612 (Mass. App. Ct.), rev. denied, 636 N.E.2d

279 (Mass. 1994). For present purposes, we follow the

district court in assuming arguendo that a showing of bad

faith or fraud could be used to lessen or prevent recovery;

the FDIC asserts the contrary but offers no case directly on

-4-
-4-

point. Still, reviewing the matter de novo, Brown v. Hearst

Corp., 54 F.3d 21, 24 (1st Cir. 1995), we agree with the

district court that there is no genuine issue of material

fact to preclude summary judgment.

Determining whether there is a genuine issue ordinarily

involves two different dimensions: burden of proof and

quantum. The burden of proof on the issue at trial is

relevant because, if a party resists summary judgment by

pointing to a factual dispute on which it bears the burden at

trial, that party must point to evidence affirmatively

tending to prove the fact in its favor. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). Here, at trial bad

faith or fraud would be an affirmative defense to be proved

by the guarantors. See Shawmut, 606 N.E.2d at 928.1

The quantum of proof that the guarantors must offer is a

different matter. It is merely "sufficient evidence to

permit a reasonable jury to resolve the point in the

nonmoving party's favor." Hope Furnace Associates, Inc. v.

FDIC, 71 F.3d 39, 42-43 (1st Cir. 1995). In evaluating the

sufficiency of this evidence on summary judgment, inferences

1Courts often say that the party seeking summary
judgment bears the burden to show that there is no genuine
issue of fact. See, e.g., Johnson v. United States Postal

Serv., 64 F.3d 233, 236 (6th Cir. 1995). This is true enough

in general terms, and true specifically as to facts that the
moving party would have to prove at trial; but given Celotex,

the generalization may be misleading as to facts that the
nonmoving party would have to prove at trial as part of its
own claim or defense.

-5-
-5-

are drawn in favor of the nonmoving party. Brown, 54 F.3d at

24. Thus, the guarantor's burden is not a heavy one. But it

is still their burden to point to admissible evidence that

would "permit" a factfinder to conclude rationally that the

FDIC had acted fraudulently or in bad faith.

Here, Brandon Woods has offered no reason whatever why

the FDIC should have chosen deliberately to undermine the

foreclosure sale. The FDIC relied upon that sale to generate

immediate proceeds to cover its claim and, on the surface, it

had no motive to diminish the recovery from its own security.

The prior contractor's lien was only somewhat above the

$300,000 realized at the sale. If the property were worth

millions more, it was plainly in the FDIC's interest to

obtain the highest price--especially since a deliberate

failure to seek it could give the guarantors a defense

against claims on the guarantees.

If the mortgagee in a foreclosure case buys the property

itself, it may well have an interest in paying less while

preserving its claim for the deficit; but Brandon Woods does

not suggest that the winning bidder at the foreclosure was a

pawn of the FDIC. Other malign motives could also be

imagined but are not suggested here either by the guarantors

or the surrounding circumstances. In a negligence case this

would not matter but bad faith almost always assumes a

motive. It is an uphill effort for the guarantors to urge

-6-
-6-

that, without any apparent motive and contrary to its own

best interest, the FDIC chose to sabotage its own foreclosure

sale.

Nor is there any indication of how, in the guarantors'

view, this sabotage was carried out. An affidavit of the

FDIC describes the notice given for the auction and the

bidding process. Notice was given in a number of journals

(e.g., The Chicago Tribune, Crain's Chicago Business, Glen

Ellyn News), and it appears that marketing efforts by a

professional were made in addition to the notices.

Allegedly, 20 potential bidders appeared. In the event,

three persons bid. The state court thereafter confirmed the

sale, finding that the sale was properly conducted.

Normally, a party suggesting fraud or bad faith is

expected to point to the misconduct (lies, rigged account

books, self-dealing by a fiduciary) that reflects the bad

faith or constitutes the fraud. Cf. Fed. R. Civ. P. 9(b).

True, on some occasions the inference of fraud or bad faith

might be compelled by the combination of motive and outcome;

but here motive is utterly lacking and the outcome far more

ambiguous than the guarantors suggest. In all events, the

failure to allege any specific misconduct consonant with

fraud or bad faith further impairs the guarantors' claim.

Against this background, Brandon Woods points to two

circumstances: the supposed discrepancy in amounts between

-7-
-7-

estimates of value and the price received, and the admitted

delay in the sale. The most striking difference in amounts

is between the $13 million suggested by the bankruptcy court

and the $300,000 winning bid two years later. Massachusetts

courts have held what common sense would in any event

suggest: that the disparity between appraised value and

amount received in foreclosure does not generally show bad

faith but might do so in extreme circumstances. Seppala &

Aho Constr. Co. v. Petersen, 367 N.E.2d 613, 620 (Mass.

1977); see also RTC v. Carr, 13 F.3d 425, 430 (1st Cir.

1993).

In this instance, however, the $13 million figure was

not a serious estimate of the property's then-current value.

As the transcript of the bankruptcy hearing shows, it was

simply an attempt to approximate what the retirement-

community project would be worth if it were ever built and

all of its units sold at a projected price. Finding that

this amount would (slightly) exceed the debt then owed to the

bank, the bankruptcy court offered a few months' delay in the

foreclosure for Brandon Woods to seek more financing. There

was no finding that completion of the project or the sale of

the units was likely.

It is true that in the same bankruptcy proceeding, a

bank expert apparently testified that the property was then

worth just under $7.5 million. But it appears that the

-8-
-8-

bank's interest at the time was simply to show that the

property was worth less than the $12 millon or so then

claimed by the bank, and thereby to justify an immediate

sale. Nor do we know whether the bank was valuing the

property at a supposed market value rather than at the lower

price their forced liquidation would ordinarily be expected

to bring. See BFP v. RTC, 114 S. Ct. 1757, 1761-62 (1994).

Not only is the $7.5 million figure largely unexplained,

but it is also undermined as a liquidation value by Romano's

own admission. Romano himself warned the FDIC only a few

months later, in September 1991, that the property might

bring only $2 million on liquidation. And when the property

was sold two years later for $300,000, it was burdened with

$1.1 million in back taxes and the cost of dealing with

certain environmental hazards, including asbestos. Adjusting

the purchase price for these burdens assumed by the

purchaser, the discrepancy between Romano's $2 million figure

and the sale price hardly seems large.

Brandon Woods also points to the delay of two years in

carrying out the sale, which is as close as it ever gets to

identifying a deficiency in the FDIC's conduct. Brandon

Woods makes no effort to show that the delay caused a

substantial reduction in the price ultimately obtained, but

the district court said that property values did decline

during the delay. In any event, the FDIC had itself urged an

-9-
-9-

immediate sale; such a sale would have avoided upkeep and

taxes on the property (which may have been earning no

income); and the FDIC is oddly silent about the reasons for

the delay.

The facts just described might be an ample basis for an

inference that the FDIC acted negligently in failing to

dispose more promptly of the property. The impression that

the FDIC lost track of the matter is reinforced by the fact

that, after failing to act for two years, the FDIC was

spurred to make the sale by news that the property was about

to be sold for unpaid taxes.2 If this were a case about

negligence, it might well be one in which summary judgment

could not be granted for the FDIC.

But the broad waiver provision in the guaranties

forecloses such defenses against the bank or its successor in

interest. Brandon Woods does not question this reading nor

claim that Massachusetts law forbids such a waiver. So while

negligence may be a plausible inference (and could also

explain the FDIC's reticence), it is no defense to summary

judgment in these circumstances. If anything, the likelihood

of negligence tends further to undermine the claim that bad

2At oral argument counsel suggested that the explanation
for the delay may be found in efforts of the parties to reach
a "global settlement" involving other Romano-controlled
property in Massachusetts. But in determining whether
summary judgment was properly granted, we must take the
record as it existed in the district court.

-10-
-10-

faith or fraud could be inferred as the explanation for the

delay. In all events, there was inadequate evidence of fraud

or bad faith to raise a genuine issue of material fact.

It is unnecessary to consider the issue to which the

parties devote much of their briefs, namely, whether the

guarantors were entitled to litigate about the fairness of

the sale price at all. The FDIC argues that the guarantors

are precluded from doing so because of the state court ruling

that the sale was fair; the guarantors say that they were not

parties to that proceeding even though Brandon Woods itself

was a party. We express no view on the collateral estoppel

issue since it does not affect the outcome.

Affirmed.

-11-
-11-