Crowley v. FDIC

• Decision Date: 01 December 1993
• Docket Number: Civ. No. 92-315-SD.
• Citation: 841 F. Supp. 33
• Parties: Richard P. CROWLEY, individually and as Trustee of 1035 Mammoth Trust v. F.D.I.C.
• Court: U.S. District Court — District of New Hampshire

841 F. Supp. 33

Richard P. CROWLEY, individually and as Trustee of 1035 Mammoth Trust v. F.D.I.C.

Civ. No. 92-315-SD.

United States District Court, D. New Hampshire.

December 1, 1993.

COPYRIGHT MATERIAL OMITTED

Dennis N. Perreault, Concord, NH, Richard L. Binder, Boston, MA, for plaintiff.

Simon C. Leeming, Concord, NH, for defendant.

ORDER

DEVINE, Senior District Judge.

This action arises out of a banking relationship between Richard P. Crowley and Amoskeag Bank which dates back to 1986.

On October 10, 1991, the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver and liquidating agent of Amoskeag Bank pursuant to an order of the New Hampshire Banking Commissioner. On or about January 24, 1992, plaintiff Crowley filed a Proof of Claim with FDIC in which he claimed to have suffered damages as a result of a series of wrongful actions by Amoskeag Bank. In particular, Crowley alleged that Amoskeag Bank

has interfered with my contracts and advantageous relations with Thomas Bullock, Robert Dickson and Bank of Boston; improperly disseminated confidential information concerning my financial condition; acted in violation of its obligation, as mortgagee, to exercise good faith and due diligence to protect my interest, as mortgagor, in real property; acted in violation of its implied obligations of good faith and fair dealing; and defamed me.

Proof of Claim at 1 (attached to Complaint).¹

By a Notice of Disallowance of Claim dated April 27, 1992, FDIC denied Crowley's Proof of Claim. Thereafter, on June 26, 1992, Crowley filed suit on his Proof of Claim in this court pursuant to 12 U.S.C. § 1821(d)(6). Presently before the court are defendant FDIC's motion for summary judgment and plaintiff's objection thereto.

Background

According to plaintiff, "this action concerns, in principal part, a mortgage loan for an eight unit building at 1035 South Mammoth Road, Manchester." Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment at 4.

On or about June 3, 1986, Amoskeag Bank loaned Crowley $520,000 to purchase said property. The promissory note signed by Crowley to obtain the loan was secured by a first mortgage on the property, also dated June 3, 1986.

Sometime in 1990, Crowley became unable to continue making the full amount of his loan payments. He then allegedly "made various proposals to Amoskeag in an effort to reach an accommodation with Amoskeag that would result in a commercially reasonable disposition of said loan." Crowley Affidavit at ¶ 10. However, none of these proposals were accepted by Amoskeag Bank. Instead, by letter dated June 5, 1991, the bank notified Crowley that "failure to pay principal and interest due under the Note constitutes an event of default under the Mortgage for which the Bank may exercise any and all right available to it, including the statutory power of sale contained in the Mortgage." Crowley Affidavit, Exhibit F. In addition, because there remained "outstanding interest and principal due on account," Amoskeag Bank demanded that Crowley pay the note in full by July 1, 1991. Id.

Amoskeag Bank subsequently scheduled a foreclosure sale on the 1035 South Mammoth Road property for September 30, 1991. Crowley responded by filing an Ex-Parte Petition to Enjoin Foreclosure Sale in Hillsborough County (New Hampshire) Superior Court. Said petition was granted on September 27, 1991, and as a result, the previously scheduled foreclosure sale did not take place. In addition, no other attempt to sell the property at a foreclosure sale was made prior to October 10, 1991, the date FDIC was appointed as receiver and liquidating agent of Amoskeag Bank.

Discussion

In moving for summary judgment, FDIC asserts, as to each of Crowley's claims, (1) that plaintiff has failed to set forth sufficient material facts to show that there is a genuine issue for trial, and (2) that plaintiff's claims are barred by the doctrine set forth in D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and its statutory counterpart, 12 U.S.C. § 1823(e).

Summary Judgment Standard

Under Rule 56(c), Fed.R.Civ.P., summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Where, as here, the moving party does not have the burden of proof at trial, the movant's summary judgment burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In response, the nonmovant "may not rest upon the mere allegations or denials of his pleading." Rule 56(e), Fed.R.Civ.P. Instead, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." Id. See also Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) ("On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion."), cert. denied, ___ U.S. ___, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).

Furthermore, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, 477 U.S. at 322, 106 S.Ct. at 2552.

Tortious Interference with Contractual Relations

In his complaint, Crowley alleges that Amoskeag Bank tortiously interfered with his contractual relations with Thomas Bullock, Robert Dickson, and Bank of Boston by improperly disclosing confidential information to said parties.² Proof of Claim at 1-2.

Under New Hampshire law,

The elements necessary successfully to plead a cause of action for tortious interference with contractual relations are `that (1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.'

Jay Edwards, Inc. v. Baker, 130 N.H. 41, 46, 534 A.2d 706, 709 (1987) (quoting Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 988 (1st Cir.1983)) (emphasis added).

The evidence submitted by Crowley in the Proof of Claim and the deposition transcript of former Amoskeag Bank Loan Workout Officer Douglas W. Worden is sufficient to establish, under Rule 56(e), that he had economic relationships with the named parties and that Amoskeag Bank knew of such relationships. As to whether Amoskeag Bank "intentionally and improperly interfered" with those relationships, plaintiff's evidence consists of the following statements in his Proof of Claim:

I believe that Amoskeag tortiously interfered with my obtaining repayment of $300,000 my pension fund loaned to Thomas A. Bullock of Manchester, New Hampshire and Robert W. Dickson of Manchester, New Hampshire. I am involved in litigation with Messrs. Bullock and Dickson concerning their obligation to repay the loan and the parties have attempted to settle that litigation. I believe that Messrs. Bullock and Dickson are stockholders of Amoskeag Beverages, Inc. of Manchester, New Hampshire. Amoskeag made substantial loans to Amoskeag Beverages. I believe that Amoskeag advised Messrs. Bullock and Dickson that if they repaid the money my pension fund loaned to them or made any payments to me or my pension fund, Amoskeag would take action adverse to its present and future banking relationship with Amoskeag Beverages. As a result, I have been unable to resolve that action and obtain repayment from Messrs. Bullock and Dickson.

Proof of Claim at 1-2.

Because Crowley has sworn to the statements made in his Proof of Claim, the court treats it as a verified complaint. Accordingly, like a verified complaint, the Proof of Claim will

be treated as the functional equivalent of an affidavit to the extent that it satisfies the standards explicated in Rule 56(e) (in summary judgment milieu, affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein").

Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir.1991).

Applying this rule to the Proof of Claim, the court finds that the statements based solely upon Crowley's "belief" do not meet the requirements of Rule 56(e). See, e.g., Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (statements "made upon information and belief ... do not comply with Rule 56(e)"), overruled on other grounds, Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969). As plaintiff has submitted no other evidence to establish a genuine issue as to whether Amoskeag Bank intentionally and improperly interfered with Crowley's contractual relations, defendant's motion for summary judgment as to said claim must be granted.

Improper Dissemination of Confidential Information

In his second claim, Crowley alleges that Amoskeag Bank "improperly disseminated confidential information concerning his financial condition" to Thomas A. Bullock and Robert W. Dickson and to Bank of Boston. Proof of Claim at 1. The only evidence submitted by Crowley in support of this claim are the following statements in his sworn Proof of Claim:

I have periodically provided Amoskeag with highly confidential financial information, including personal financial statements and copies of income tax returns, pursuant to express and implied agreements that Amoskeag would maintain the confidentiality of such

...