Eastern Holding Corp. v. Congress Financial Corp.

910 N.E.2d 931, 74 Mass. App. Ct. 737
CourtMassachusetts Appeals Court
DecidedAugust 3, 2009
DocketNo. 07-P-1669
StatusPublished
Cited by14 cases

This text of 910 N.E.2d 931 (Eastern Holding Corp. v. Congress Financial Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eastern Holding Corp. v. Congress Financial Corp., 910 N.E.2d 931, 74 Mass. App. Ct. 737 (Mass. Ct. App. 2009).

Opinion

Cohen, J.

The plaintiffs, Eastern Holding Corporation (EHC) [738]*738and Shelburne Corporation (Shelburne) (collectively, the plaintiffs), brought this lawsuit against the defendant, Congress Financial Corporation (Congress), seeking damages on account of Congress’s refusal to return cash collateral pledged by the plaintiffs to secure certain loans made by Congress to the plaintiffs’ subsidiaries (the borrowers) in the course of a lengthy financial relationship.2 A judge of the Superior Court granted summary judgment to Congress, and this appeal ensued. For the reasons that follow, we conclude that Congress was not entitled to summary judgment and that the case must be remanded for further proceedings.

Background. The borrowers operated two large paper production mills in Maine. Their relationship with Congress began when, pursuant to an agreement dated September 30, 1997, Congress funded a term loan and a revolving loan, collateralized by a pledge of the borrowers’ business assets. The revolving loan was based upon a “borrowing base,” determined by a percentage of the borrowers’ eligible accounts receivable and inventory. In general, the borrowers could borrow approximately eighty-five percent of eligible accounts receivable and sixty percent of eligible inventory; the borrowers could not borrow more than permitted by this formula, except at Congress’s discretion.

The present dispute concerns three subsequent loans that came into being in 2002 and 2003. At that time, the borrowers were operating as debtors-in-possession in Chapter 11 bankruptcy proceedings, had additional cash needs, and negotiated with Congress to borrow additional funds on a revolving basis. The borrowers and Congress therefore entered into agreements and amendments to existing loan documents to create the so-called sixth, seventh and eighth supplemental revolving loans.

The sixth loan was secured by a pledge by EHC of $750,000 in cash collateral, which was equal to the maximum principal balance of that loan. Similarly, the eighth loan was secured by a pledge by Shelburne of $1 million, which was equal to the maximum principal balance of that loan. The seventh loan was [739]*739secured by all previous collateral but was not secured by any new pledge of collateral, and had a maximum principal balance of $500,000.

For present purposes, the most salient terms of the agreements pertaining to the sixth, seventh, and eighth loans and the release of the pledged collateral may be summarized as follows: the release of each pledge of collateral was conditioned upon both the repayment of the loan it secured and the repayment in full of the seventh loan;3 the sixth, seventh, and eighth loans had priority over previous loans made by Congress to the borrowers, in the sense that only after these three loans were repaid would the borrowers’ payments be applied to other outstanding loans; and Congress had discretion to lend additional funds under all three loans in excess of their maximum principal balances.

As the motion judge concluded, it is not genuinely disputed that, in early December, 2003, an event of default occurred, permitting Congress to apply the collateral pledged in connection with the sixth and eighth loans.4 On December 16, 2003, Congress gave written notice to the borrowers and the plaintiffs that an event of default had occurred, stating that, without waiving its rights, it would permit a preexisting forbearance agreement to remain in effect for the time being. It was not until January 29, 2004, that Congress announced its intention to apply the collateral. On the same date, the plaintiffs requested the return of the collateral. It is the plaintiffs’ contention that, by January 29, 2004, the borrowers had fulfilled the conditions of release by paying in full the balances of the sixth, seventh, and eighth loans, and that Congress therefore was obligated to return the collateral.

[740]*740On the plaintiffs’ motion for partial summary judgment and Congress’s cross-motion for summary judgment, the motion judge rejected the plaintiffs’ position on the ground that the plaintiffs had lost all rights to the collateral when the event of default occurred, and that even if they subsequently paid the full balances of the sixth, seventh, and eighth loans prior to Congress’s application of the collateral, they were not entitled to the collateral’s return. As a result, he did not reach Congress’s alternative argument that the plaintiffs had not, in fact, fully paid off the three loans prior to the application of the collateral.

Discussion. Summary judgment is appropriate where the records and pleadings “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.” Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Our review of a summary judgment decision is de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 334 (2007).

On the question of the plaintiffs’ right to obtain the return of the collateral after notice of the event of default, the most pertinent case, cited by both the parties and the motion judge, is Dana v. Wildey Sav. Bank, 294 Mass. 462 (1936). In that case, the Supreme Judicial Court held that a bank’s delay in exercising its right to liquidate securities that had been pledged as collateral for a loan was not a waiver of the bank’s right to enforce the agreement and apply the collateral. Id. at 467. The court explained further, however, that while the bank’s right to enforce the agreement became “absolute” prior to selling the collateral, the plaintiff still could have prevented the sale of the pledged securities by making payment of the full amount of the debt. Id. at 468. In other words, the rights of the secured creditor to apply the collateral remained subject to the debtor’s right of redemption. Ibid. See G. L. c. 106, §§ 9-602, 9-623(b), and 9-624(c).

In the present case, Congress delayed in applying the collateral until January 29, 2004. Thus, under the rubric of Dana v. Wildey Sav. Bank, supra, and contrary to the ruling below, if the borrowers already had repaid the full indebtedness under the sixth, seventh, and eighth loans by that date, the plaintiffs had the right to the release of the collateral.

[741]*741Congress argues that, even if the plaintiffs were able to obtain the return of the collateral upon full repayment of the sixth, seventh, and eighth loans, Congress still was entitled to summary judgment on the alternative ground that the borrowers, in fact, had not paid back the full indebtedness under these loans by January 29, 2004. Specifically, Congress contends that the seventh loan was a so-called “overadvance facility,” the balance of which was equivalent to the amount by which the balance of all loans made pursuant to the original agreement and subsequent amendments exceeded the borrowing base. Congress maintains that, as an overadvance facility, the seventh loan could not be deemed repaid unless and until the total indebtedness was brought back “into formula,” i.e., to a point where the borrowing base plus cash collateral equaled or exceeded the balance of all outstanding loans.

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Bluebook (online)
910 N.E.2d 931, 74 Mass. App. Ct. 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-holding-corp-v-congress-financial-corp-massappct-2009.