Patel v. Amresco SBA Holdings, Inc.

867 N.E.2d 337, 69 Mass. App. Ct. 192
CourtMassachusetts Appeals Court
DecidedMay 31, 2007
DocketNo. 05-P-1867
StatusPublished
Cited by6 cases

This text of 867 N.E.2d 337 (Patel v. Amresco SBA Holdings, Inc.) 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
Patel v. Amresco SBA Holdings, Inc., 867 N.E.2d 337, 69 Mass. App. Ct. 192 (Mass. Ct. App. 2007).

Opinion

Perretta, J.

After a judge allowed summary judgment in favor of Amresco SBA Holdings, Inc. (Amresco), in its action against Madhav B. Patel seeking to enforce a contract of guaranty and recover a deficiency due on a promissory note, a second judge allowed Amresco to attach certain real estate owned by Patel, subject to Patel’s homestead interest. Patel appeals from the sum[193]*193mary judgment in Amresco’s favor on his counterclaims brought under G. L. c. 93A, arguing that they were not waived or precluded by a choice of law provision contained in a deed of trust granted to secure the note underlying the present controversy. Amresco cross-appeals from so much of the order of attachment as recognizes a homestead interest. We conclude that Amresco was properly granted summary judgment and that the order of attachment erroneously exempted the homestead interest in dispute.

1. The undisputed facts. We summarize the pertinent and essentially undisputed facts set out in the judge’s memorandum of decision and order on Amresco’s motion for summary judgment, as supplemented where we think necessary by other undisputed facts contained in the record appendix.

At all times relevant to the action before us, Kanta Hospitality, Inc. (Kanta), was a Texas corporation organized for the principal purpose of operating a motel business in Texas. Although Patel, who resided in Waltham, was vice-president, treasurer, and a fifty percent owner of Kanta, he was not involved in the day-to-day operations of the motel business in Texas.

On or about January 13, 2000, Rejendra A. Jethva, in his capacity as Kanta’s president, executed a United States Small Business Administration Note (note) in the face amount of $1,500,000, payable to Amresco Independence Funding, Inc., predecessor in interest to Amresco. Patel attested to Jethva’s execution of the note by signing it in his capacity as Kanta’s treasurer. The note was secured by a deed of trust (trust deed) of even date granted by Kanta to Charles P. Bell, Jr., as trustee of Amresco, on certain motel property located in Texas (property) as well as by a United States Small Business Administration unconditional guaranty (guaranty) signed by Patel, individually, on or about January 18, 2000.2 Section 1 of the guaranty reads:

“Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note. This Guarantee remains in effect until the note is paid in full. Guarantor [194]*194must pay all amounts due under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek payment from any other .source before demanding payment from Guarantor.”

As defined by the guaranty, the term “ ‘collateral’ means any property taken as security for payment of the Note or any guarantee of the Note.” The guaranty granted the lender the right to “[foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without advertisement” and to “[b]id or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender chooses,” without releasing the obligations of the guarantor.

Of particular relevance to the present dispute are the provisions of the guaranty by which Patel, as the guarantor, waived defenses based upon any claim that the lender or others improperly valued, inspected, or impaired the collateral or that the lender did not conduct a commercially reasonable sale or obtain fair market value for the collateral, as well as the provision in the previously described trust deed which recites that “[tjhis Deed of Tmst, the note and all other documents evidencing, securing or pertaining to the Secured Indebtedness, are intended to be performed in the State of Texas; and except to the extent that [F]ederal law applies, all such documents and instruments shall be governed by the laws of the State of Texas.”

Kanta defaulted on the note in August, 2002. About three months later, in November, 2002, Amresco gave written notice to Patel that the loan was in default for nonpayment, demanded payment of the delinquency, and indicated its intent to accelerate the note if payment was not received. The following month, December, 2002, Kanta sought protection in the United States Bankruptcy Court for the Southern District of Texas. During the course of the bankruptcy proceedings, Amresco agreed to a plan that would permit Kanta to sell the property to a third party for $1,150,000, to pay Amresco the reduced amount of $1,070,000, and to be free and clear from any further lien on the property. The Bankruptcy Court entered orders in April, 2003, authorizing Kanta to sell the property in accordance with the previously mentioned plan provided that the sale closed within sixty days. [195]*195Should the sale not close within that time period, the automatic stay entered pursuant to 11 U.S.C. § 362 (2000), would be lifted and Amresco would be allowed to foreclose on the property.

Between October, 2002, and June, 2003, Kanta received but declined several offers to purchase the property at prices ranging from $1,050,000 to $1,400,000. When Kanta failed to consummate a sale within the sixty-day time period set by the Bankruptcy Court judge, Charles Bell, as trustee for Amresco, purchased the property at foreclosure sale on or about August 5, 2003, for $744,341. About a month later, Amresco sold the property to a third party for $902,000.

On January 23, 2004, Patel executed a declaration of homestead protection as an elderly person on his Waltham property. See G. L. c. 188, § 1A. The declaration was duly recorded the following month.

2. The proceedings. On March 16, 2004, Amresco brought the present Superior Court action against Patel to enforce the guaranty and recover the deficiency due on the note. It also made an ex parte request for permission to attach Patel’s Waltham property, which was denied without prejudice.

Patel answered the complaint and asserted counterclaims for breach of the implied duty of good faith and fair dealing and violation of G. L. c. 93A, § 9. His counterclaims were essentially based on allegations that Amresco had acted in bad faith by rejecting offers to purchase the property for amounts that were greater than that for which it, Amresco, had purchased the property at the foreclosure sale.

A Superior Court judge allowed summary judgment in favor of Amresco. Her decision was based on the fact that pursuant to the terms of the trust deed and the guaranty, the law of Texas was to be applied to Patel’s answer and counterclaims. Based on the terms of the trust deed and the guaranty, the judge concluded that Patel was precluded from asserting any claims pursuant to G. L. c. 93A, that Patel’s claims arising out of Am-resco’s conduct regarding the foreclosure sale were waived under the terms of the guaranty, and that the materials presented by Patel were, in any event, insufficient to support his claim that Amresco was in breach of any duty of good faith and fair [196]*196dealing or was “unfair or deceptive” within the meaning of G. L. c. 93A.

Following the entry of summary judgment in its favor, Am-resco again sought an attachment on Patel’s Waltham property in the amount of $900,000. A second Superior Court judge allowed the motion subject to Patel’s $300,000 homestead interest.3

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Bluebook (online)
867 N.E.2d 337, 69 Mass. App. Ct. 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patel-v-amresco-sba-holdings-inc-massappct-2007.