FDIC v. Rusconi, Civ. No. 91-0043-P-C.

• Decision Date: 21 October 1992
• Docket Number: Civ. No. 91-0043-P-C.
• Citation: 796 F. Supp. 581
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff and Counterclaim Defendant, v. Patricia B. RUSCONI and Angelo Rusconi, Defendants and Counterclaim Plaintiffs.
• Court: U.S. District Court — District of Maine

796 F. Supp. 581

FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff and Counterclaim Defendant, v. Patricia B. RUSCONI and Angelo Rusconi, Defendants and Counterclaim Plaintiffs.

Civ. No. 91-0043-P-C.

United States District Court, D. Maine.

May 28, 1992.

Vacated October 21, 1992.^*

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mary Ann E. Rousseau, Friedman & Babcock, Portland, Me., for plaintiff.

William K. McKinley, Richardson & Troubh, Portland, Me., for defendants.

ORDER GRANTING PLAINTIFF FEDERAL DEPOSIT INSURANCE CORPORATION'S MOTION FOR PARTIAL SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

This case arose out of Plaintiff Federal Deposit Insurance Corporation ("FDIC")¹ seeking foreclosure of realty owned by Patricia and Angelo Rusconi ("Defendants"), which was provided as collateral for a note dated October 2, 1987 ("First Note"), in the principal amount of $150,000. Defendants had executed, acknowledged, and delivered to BNE a Mortgage and Security Agreement ("Mortgage") covering personal realty located at Lake Thompson, Maine. Plaintiff seeks foreclosure of the Mortgage and sale of the realty in accordance with 14 M.R.S.A. section 6322 et seq.

Plaintiff also seeks to enforce the personal guaranties of the four promissory notes signed by Ms. Rusconi, including the First Note, which Defendants signed on October 2, 1987 on behalf of Gilfenbain Brothers, Inc. ("GBI").

Defendants have raised over seventeen affirmative defenses to Plaintiff's claims and have also counterclaimed against Plaintiff in seven separate counts, including fraud, unfair and deceptive practices, breach of implied covenant of good faith, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages.

The Court now has before it Plaintiff's Motion for Partial Summary Judgment, filed on March 9, 1992. The Court acts on this Motion on the basis of the written submissions of the parties.²

I. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment must be granted if "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." The Court of Appeals for the First Circuit has articulated the legal standard to be applied in deciding motions for summary judgment:

The movant must adumbrate `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). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both `material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), and `genuine,' in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248 106 S.Ct. at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. `The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:

There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be entered.

Anderson, 477 U.S. at 249-59 106 S.Ct. at 2510-16.

Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.1989).

The Court now looks to the supporting papers on the motion and the citations to materials of evidentiary quality in support of the issues which the Court must consider as a basis for its action upon the motion.

II. Facts

The Court finds the following facts to be undisputed on the record made on the motion.

The FDIC is the holder of four promissory notes dated October 1987,³ November 22, 1988, December 14, 1988, and May 12, 1989, executed by Patricia Rusconi, in the principal amounts of $150,000, $100,000, $120,000, and $49,900, respectively.⁴ These four Notes are in default by virtue of Defendants' failure to pay when due and owing within any applicable grace period the monthly installments required by the First Note and failure to pay on demand the Second, Third, and Fourth Notes, which are payable on demand.⁵

On October 2, 1987, Defendants executed and delivered to Plaintiff unconditional guaranties of all the obligations owed to Plaintiff by GBI, pursuant to which each Defendant guaranteed payment of all sums then due and owing and "all sums which shall in the future become due and owing. ..." to Plaintiff from GBI.⁶

In order to secure the Guaranties entered on October 2, 1987, by Defendants and to secure the First Note in the amount of $150,000, Defendants executed and delivered to Plaintiff a Mortgage in favor of Plaintiff.

On December 31, 1988, Ms. Rusconi, on behalf of GBI, tendered full payment under the First Note to BNE. She sent a letter with the check to BNE and requested that the Bank, through Janet Maher, cash the check and discharge the First Note. The Bank did not cash the check. Thereafter, within a week or two, Ms. Rusconi spoke with Ralph DiGiacomo of BNE who indicated that the Bank would not accept the prepayment.

III. Discussion

A.

Under Count I, pursuant to Maine law, the Court shall determine (1) whether Defendants have breached a condition of the mortgage; (2) the amount due thereon including reasonable attorneys' fees and court costs; and (3) the order of priority and the amount due, if any, to other parties that may appear. 14 M.R.S.A. § 6322 (Supp.1990). The Court concludes that no genuine issue of material fact exists as to any of these elements under Maine law.

First, the Mortgage was given to secure the First Note and Guaranties and it provides as follows:

the Guaranty of the Mortgagor to the Mortgagee in the sum of ... $150,000, which Guaranty is of even date, and also to secure the performance of all agreements herein contained and contained in a Note ... of even date of Gilfenbain to the Mortgagee....

It further provides:

It is also agreed that this Mortgage is security for the payment of the aforesaid obligations and all other direct and contingent liabilities of the Mortgagor hereof to the holder hereof due or to become due whether now existing or hereafter contracted.

Plaintiff FDIC's Statement of Material Facts as to Which There is no Genuine Issue to be Tried ("Plaintiff's Statement"), Exhibit G.

The Court finds that the Mortgage secures the Guaranties and the First Note in the amount of $150,000. The Court further finds that this Note is in default because Defendants failed to pay the monthly installments when due and owing.⁷ The Court concludes that no genuine issue of material fact exists as to whether Defendants are in default under the First Note. As a result, Defendants breached a condition of the Mortgage.

Second, Defendants have failed to make the required payments of the principal and accrued interest due under the Note.⁸

Last, with respect to the order of priority, and the amount due to other parties, no other parties that appear claim any interest in the realty in question.

The Court finds that Plaintiff has satisfied the aforementioned elements under Maine law and has established its affirmative case for foreclosure under Count I of its Complaint.

B.

Under Count II, Plaintiff alleges that Defendants are in default of their Guaranties to pay all sums due and owing under the four Notes. The parties dispute the proper interpretation of the Guaranties signed by Defendants. Plaintiff alleges that Defendants guaranteed all sums then due and owing and "all sums which shall in the future become due and owing" to the Plaintiff from GBI. Plaintiff argues that the parties intended the personal Guaranties to remain effective for all of the loan obligations of GBI, including the four Notes. Plaintiff's Memorandum at 10-11.

Defendants first argue that they signed the Guaranties unknowingly because Plaintiff never mentioned such Guaranties to them prior to or during the closing. Further, they argue, based on alleged oral communications, that the Guaranties were meant to apply only to the First Note, but not to any other subsequent notes or debt obligations of GBI.⁹ Although they admit that the Guaranties are "simple and straightforward," they argue that the guaranties must be read together with the Mortgage and Notes as part of one transaction. Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defendants' Memorandum") at 6. When the documents are read together, Defendants argue that the Guaranties are ambiguous. They conclude that because the instruments that Plaintiff seeks to enforce, including the Guaranties, are ambiguous, "their content must be determined upon testimony by the trier of fact." Id.

The issue of whether contract language is ambiguous is a question of law under Massachusetts law.¹⁰See Boston Five Cents Savings Bank v. Secretary of Department of Housing and Urban Development, 768 F.2d 5, 8 (1st Cir.1985).¹¹ Moreover, the interpretation of an unambiguous written document is a question of law for the Court under Massachusetts law. See Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 157, 445 N.E.2d 1053 (1983). Under Massachusetts law,...