Fleet Bank of Massachusetts, N.A. v. One-O-Six Realty, Inc.

3 Mass. L. Rptr. 392
CourtMassachusetts Superior Court
DecidedJanuary 17, 1995
DocketNo. CA943392G
StatusPublished

This text of 3 Mass. L. Rptr. 392 (Fleet Bank of Massachusetts, N.A. v. One-O-Six Realty, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleet Bank of Massachusetts, N.A. v. One-O-Six Realty, Inc., 3 Mass. L. Rptr. 392 (Mass. Ct. App. 1995).

Opinion

Doerfer, J.

The plaintiff, Fleet Bank of Massachusetts, N.A. (“Fleet”), brought this action against the defendants, One-O-Six Realty, Inc. (“One-O-Six”) and Salt Hill, Inc. (“Salt Hill”) for payment on a note which matured on March 28, 1994. Fleet seeks to recover the principle amount on the note, collection fees, default interest and a late fee. Fleet has now moved for summary judgment on its complaint. For the reasons which follow, the plaintiffs motion is allowed in part and denied in part.

BACKGROUND

One-O-Six is the owner of two pieces of real estate, a motel, restaurant, and retail property located at 225 Newbury Street (Route 1), Danvers, Massachusetts (“225 Newbury”) and a Ford automobile dealership and adjacent vacant land located at 106 Sylvan Street, Danvers, Massachusetts (“106 Sylvan”). On April 6, 1988, One-O-Six executed a loan accompanied by a note (the “Note”) with Bank of New England — Essex (“BNE”), Fleet’s predecessor-in-interest, promising to pay a principal amount of $3,200,000 plus interest. The Note was secured by a first mortgage in 225 Newbury and guaranteed by Salt Hill, Inc. The Note was to mature on April 6, 1989. On the same day, One-O-Six also executed another loan for a $500,000 line of credit. The line of credit was secured by a second mortgage on 225 Newbury. By an agreement dated June 5, 1989, BNE and One-O-Six agreed to extend the maturity date of the Loan and the Line of Credit to July 5, 1990. On December 28, 1990, the parties signed a document entitled “Agreement” which restructured the Loan and the Line of Credit as follows: (a) the Line of Credit was paid off; (b) the loan was reduced to approximately $2.4 million; (c) the loan was extended two years to July 5, 1992; (d) One-O-Six began making principal payments of $3,000 per month; and (e) One-O-Six gave BNE additional collateral in the form of an assignment of its car company lease.

By written agreement dated November 19, 1992, Fleet,1 One-O-Six, and Salt Hill, executed a Third Modification Agreement which again extended the maturity date of the Note to March 28, 1993. By written agreement dated June 7, 1993, Fleet, One-O-Six, and Salt Hill executed a Fourth Modification Agreement further extending the maturity date of the Note to March 28, 1994.

On March 28, 1994, the Note matured and became due. By letters datedApril25,1994 and May 11, 1994, counsel for Fleet demanded payment of all amounts outstanding from One-O-Six and Salt Hill, but as of yet, the defendants have not made any payments to Fleet. On June 23, 1994, Fleet filed this action. On June 29, 1994, the court (Houston, J.) issued a real estate attachment against One-O-Six and Salt Hill in the amount of $2,069,270.64.

DISCUSSION

Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, “and [further] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989).

I. Principle

One-O-Six admits that it signed the Note in 1989 and that it received the stated consideration. It is well-established that in Massachusetts, in an action for collection of a debt pursuant to a note, the plaintiff is entitled to judgment upon a showing of an unsatisfied debt underlying the note. Federal Deposit Insurance Corp. v. Csongor, 391 Mass. 737, 740-43 (1984). One-O-Six argues, however, that Fleet’s claims for the principle amount on the note are barred by Fleet’s breach of the covenant of good faith and fair dealing. One-O-Six asserts that Fleet’s requests for increased security and its imposition of higher interest rates prior to granting One-O-Six extensions on the maturity date of the Note were part of an “exit strategy” whereby One-O-Six would be forced to obtain a new lender.

One-O-Six does not dispute, however, that BNE and/or Fleet generously granted four extensions on the maturity date of the Note. If One-O-Six was not pleased with the terms of these extensions, it had from April of 1989, the original date of maturity of the Note, to March of 1994, the date of the last extension, to obtain a new lender. While the defendants contend that there was absolutely no risk or prejudice to Fleet in granting One-O-Six additional time to secure re-financing, Fleet was under no obligation to provide the defendants with any such gratuitous favors. Thus, as is discussed further infra, One-O-Six’s counterclaim alleging breach of the covenant of good faith and fair dealing is not supported in the record and is not a valid defense to payment of the principal amount on the Note. On the record before the court, the defendants have failed to raise genuine issues of material fact regarding Fleet’s prima facie case of an unsatisfied obligation underlying the 1989 Note. Csongor, supra at 740-43. Thus, Fleet is entitled to summary judgment on its claim for the principle amount.

II. Default Interest

Fleet further seeks summary judgment on its claim for default interest. The defendants assert that the default interest, which is 4% over the contract rate, is unenforceable as a penalty because the terms of the [394]*394Note already provide Fleet with recovery of its reasonable collection costs. The original Note states in relevant part,

At the option of the Holder, upon the occurrence of any event of default hereunder, the rate of interest stated on the fact hereof shall be increased by an additional 4% per year. Said increased rate of interest shall remain in effect for such time as the default continues.

(Ex. A to Complaint.)2

The amount of liquidated damages specified in a contract must be reasonably related to the anticipated damages and to the actual loss caused by the breach. Colonial at Lynnfield, Inc. v. Sloan, 870 F.2d 761, 764 (1st Cir. 1991), citing Security Safety Corp. v. Kuznicki, 350 Mass. 157, 158 (1966); A-Z Service Center v. Segall, 334 Mass. 672, 675 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 627 (1985); Restatement (Second) of Contracts §356 (1981). “A provision setting an unreasonably large liquidated damages amount is unenforceable on public policy grounds as a penally.” Sloan, supra at 764 (citations omitted).

Although the defendant’s loan is secured by real estate mortgages and personal guaranties, due to the fluctuating market, there is still an increased risk of non-collection upon the borrower’s default. See In re Gas Reclamation, Inc. Securities Litigation, 741 F.Supp. 1094, 1098 (S.D.N.Y. 1990) (“Under New York law, an agreement to pay an increased interest rate of default is not a penalty, but compensation for the increased risk of non-collection”). Thus, a default interest rate is not prima facie unreasonable. In the Matter of Terry Ltd. Partnership, 27 F.3d 241, 243 (7th Cir. 1994); Travelers Insurance Co. v. Corporex Properties. Inc., 798 F.Supp. 423, 428 (W.D.Ky. 1991); In re Gas Reclamation, Inc. Securities Litigation, supra at 1098.

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Related

Baybank Middlesex v. 1200 Beacon Properties, Inc.
760 F. Supp. 957 (D. Massachusetts, 1991)
Travelers Insurance v. Corporex Properties, Inc.
798 F. Supp. 423 (E.D. Kentucky, 1992)
Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
Security Safety Corp. v. Kuznicki
213 N.E.2d 866 (Massachusetts Supreme Judicial Court, 1966)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Begelfer v. Najarian
409 N.E.2d 167 (Massachusetts Supreme Judicial Court, 1980)
A-Z Servicenter, Inc. v. Segall
138 N.E.2d 266 (Massachusetts Supreme Judicial Court, 1956)
Lynch v. Andrew
481 N.E.2d 1381 (Massachusetts Appeals Court, 1985)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Federal Deposit Ins. Corp. v. Csongor
464 N.E.2d 942 (Massachusetts Supreme Judicial Court, 1984)
In Re Gas Reclamation, Inc. Securities Litigation
741 F. Supp. 1094 (S.D. New York, 1990)

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Bluebook (online)
3 Mass. L. Rptr. 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleet-bank-of-massachusetts-na-v-one-o-six-realty-inc-masssuperct-1995.