Pembroke Country Club, Inc. v. Regency Savings Bank, F.S.B.

815 N.E.2d 241, 62 Mass. App. Ct. 34, 2004 Mass. App. LEXIS 1048
CourtMassachusetts Appeals Court
DecidedSeptember 15, 2004
DocketNo. 02-P-1683
StatusPublished
Cited by58 cases

This text of 815 N.E.2d 241 (Pembroke Country Club, Inc. v. Regency Savings Bank, F.S.B.) 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
Pembroke Country Club, Inc. v. Regency Savings Bank, F.S.B., 815 N.E.2d 241, 62 Mass. App. Ct. 34, 2004 Mass. App. LEXIS 1048 (Mass. Ct. App. 2004).

Opinion

Cowin, J.

The plaintiff, a borrower pursuant to a lending agreement entered into by various participating banks, sought to negotiate a discounted payoff of the loan, but was frustrated in its effort by the actions of the defendant, a member of the bank consortium. The plaintiff commenced an action in several counts.1 A Superior Court jury returned a verdict in the plaintiff’s favor on a count for tortious interference with an advantageous business relationship, awarding the plaintiff dam[35]*35ages of $170,000. The jury also returned an advisory verdict that the defendant had violated the provisions of G. L. c. 93A and that the violation was wilful or knowing. See G. L. c. 93A, § 11. The judge adopted that verdict to the extent that the jury found there to have been a G. L. c. 93A violation, but declined to adopt the finding that the violation had been wilful or knowing.2 Both parties appealed.

The plaintiff asserts that, given the evidence, it was error for the judge not to conclude that the defendant’s c. 93A violation was wilful or knowing. On its part, the defendant argues that the jury could not permissibly find that the defendant had tortiously interfered with the plaintiff’s advantageous business relationship and that, therefore, the defendant’s motion for judgment notwithstanding the verdict on that count should have been allowed. The defendant contends also that the judge’s finding in favor of the plaintiff on the c. 93A count was error. We conclude that the evidence was insufficient to support either a finding of tortious interference or a finding of a violation of G. L. c. 93A on the part of the defendant and accordingly reverse the judgment.

1. Background. The jury could permissibly have found the following material facts. In 1991, the plaintiff became obligated as borrower on a restructured, secured loan in the principal amount of $2 million. The lender was a consortium of nine banks headed by Southstate Bank. The banks entered into a “participation agreement” among themselves regarding the syndication and management of the loan. Pursuant to that agreement, Southstate Bank, which had provided 32.71 percent of the loan amount, was designated the “Lender.” The participation agreement expressly provides that the borrower shall deal only with the lender (i.e., Southstate Bank) with respect to the loan.

By 1997, the Federal Deposit Insurance Corporation (FDIC) had succeeded to Southstate Bank’s interest with respect both to its percentage of the loan and its position as lender under the participation agreement. The plaintiff, having obtained a commitment for more favorable financing from another bank, approached the FDIC in an attempt to negotiate a discounted [36]*36payoff of the existing loan from the consortium. Because the FDIC was then about to sell its interest in that loan, it indicated that discussions should be suspended until that transaction had been completed and a new lender could deal with the issue pursuant to the participation agreement.

Apparently unwilling to await that development, the plaintiff contacted other members of the consortium and was able to convince members holding more than fifty-one percent of the interests in the loan to accept a payoff $170,000 less than the total amount owed. The participation agreement authorizes members holding such a fraction of the loan interests to bind the remainder with respect to such a negotiated settlement; accordingly, these members notified the FDIC as lender that there was an agreement on the part of more than fifty-one percent of the participating interests to accept the discounted amount and directed the FDIC to implement the understanding.3

Unaware of the pending arrangement to accept a discounted payment, the defendant acquired from the FDIC the interests in the loan previously held by Southstate Bank and another member of the consortium. Consequently, the defendant succeeded the FDIC as the lender for purposes of implementation of the participation agreement. Upon reviewing the status of the loan and the decision to accept less than full payment, the defendant determined that the loan was both performing and fully secured and that there was no reason to agree to a payoff of less than what was owed. The defendant forthwith sent written notice to counsel for the other loan participants that it did not consent to the discounted payoff, citing a policy “not [to] accept discounted payoffs on loans which we deem to be fully collectable.”

Shortly thereafter, the defendant wrote again to the loan participants. At this time, the defendant stated that it had assumed the position of lender under the participation agreement [37]*37and that it would exercise its right pursuant to that agreement to be the exclusive entity to deal with the plaintiff on behalf of the consortium. It advised the other members that any other negotiations with the plaintiff were to cease immediately. The letter also repeated the defendant’s view that the loan to the plaintiff should not be discounted and offered to purchase the interest of any other member for the amount the plaintiff would pay to that member if the agreement the plaintiff sought were performed.

Pursuant to this offer, the defendant purchased the interests of certain other members, eventually owning approximately eighty percent of the loan. Neither the defendant nor the remaining participants altered their view that the loan should be paid in full. The plaintiff did so upon the closing of its refinancing, thereby paying $170,000 more than it would have paid had its earlier agreement with the holders of a majority of the loan interests been consummated.

The plaintiff thereupon filed in the Superior Court a five-count complaint alleging breach of contract (count I); breach of the implied covenant of good faith and fair dealing (count It); tortious interference with a contractual relationship (count III); estoppel and unjust enrichment (count IV); and violation of G. L. c. 93A (count V). The trial judge directed verdicts in favor of the defendant on counts I, II, and TV on the ground that the evidence demonstrated conclusively that the plaintiff was not a party to any agreement or understanding.4 He denied the defendant’s motion for a directed verdict on count IH, the tortious interference count, but altered the claim to one for interference with an advantageous business relationship (the evidence having established that no contract to which the plaintiff was a party had been created). In addition, the judge sent to the jury the question whether the plaintiff, while not a party to the participation agreement itself, was instead a third-party beneficiary entitled to recover for the breach of that agreement. Finally, the judge submitted count V (the G. L. c. 93A count) to the jury for an advisory opinion. See Whitehall Co. v. Barletta, 404 Mass. 497, 499 & n.6 (1989).

The jury returned verdicts in favor of the plaintiff on the tor[38]*38tious interference and third-party beneficiary claims, awarding damages of $170,000. They also returned an advisory verdict that the defendant had violated G. L. c. 93A, that the violation was wilful or knowing, and that the plaintiff should receive double damages. On motion, the judge entered judgment notwithstanding the verdict in favor of the defendant on the third-party beneficiary claim.5

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Bluebook (online)
815 N.E.2d 241, 62 Mass. App. Ct. 34, 2004 Mass. App. LEXIS 1048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pembroke-country-club-inc-v-regency-savings-bank-fsb-massappct-2004.