Professional Documents
Culture Documents
June 1, 1994
____________________
No. 93-2049
VINCENT GRANDE,
Plaintiff - Appellant,
v.
BANK OF NEW ENGLAND OLD COLONY, N.A.
AND FEDERAL DEPOSIT INSURANCE CORPORATION,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
_____________________
____________________
____________________
Per Curiam.
___________
In this
action, the
plaintiff, Vincent
Grande,
against
the
receiver
Federal Deposit
Insurance Corporation
Co. v.
___
("FDIC") as
As the district
is substantively driven
Federal Deposit Ins. Corp., 315 U.S. 447, 457 (1942), and
__________________________
court found
the
that Grande's
nearly insurmountable
1823(e).
attempts fell
hurdle
that
short of
the D'Oench
_______
of the FDIC on
all
We affirm.
BACKGROUND
BACKGROUND
__________
Properties
mortgagor.
Grande
Eventually,
the BNE
Limited
held a
Partnership
second
loan went
into
("MPLP")
mortgage
on the
default, the
was
the
property.
mortgage was
Grande's second
mortgage.
First,
in its first
Grande asserts
that BNE agreed to allow him and MPLP to exchange Grande's second
mortgage
D'Oench, Duhme or 12
______________
on the purported
U.S.C.
Second, Grande
1823(e)
bars
and
mortgage
for
condominium
unit,
BNE's
mortgage
claims.
should
be
sale,
before
the
first
mortgage
proceeds of a
is
satisfied.
caused a
at the condominium
loss of approximately
project,
$200,000 which
harmed
Grande.1
GRANDE'S CLAIMS
GRANDE'S CLAIMS
_______________
With respect
to
Grande's first
contention, we
agree
1823(e).2
We will not
____________________
12 U.S.C.
was
executed
by
the
depository
1823(e) present
expansive
to claims
against the
FDIC, and
the
See Grande v.
___ ______
slip op. at
3-6
12
U.S.C.
1823(e),
and therefore
Grande
prohibited
from using
secret or
or guarantors are
unrecorded side
agreements to
___ ______________
U.S.
at
460.
Similarly,
12
U.S.C.
1823(e)
codifies
this
it
is
depository
"approved
by
institution or
the
its
board
of
directors
loan committee,
of
which
the
approval
by
has
the
failed
relevant
to
prove that
BNE
credit
the
exchange
committee,
and
was
more
____________________
committee,
which
approval shall
be
reflected in the minutes of said board or
committee, and
4) has been, continuously, from the time
of its execution, an official record of
the depository institution.
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importantly, that
this approval
evidence of
in the
negotiations
exchange.
between BNE,
As
MPLP, and
Grande,
found,
12
U.S.C.
1823(e).
documents
were
approved
by
Furthermore, Grande's
incorporated
the
credit
into
other
committee are
documents
that
unsubstantiated.
were
Put
simply,
mention
of
an agreement
permitting
the
exchange of
Grande's
Therefore, 12 U.S.C.
the BNE
To
make out
traditionally a bankruptcy
the
claim for
equitable
subordination,
prove that 1)
misconduct
conferred
resulted in
of
Realty Trust,
____________
omitted).
to the
subordination
provisions
injury
of
the
claim
the Bankruptcy
968 F.2d
is
or
not
Code.
1332, 1353
bankrupt's creditors
inconsistent
with
the
Cir. 1992)
(citations
improperly
result,
administered the
some $200,000
disbursed.
construction
of construction
loan
funds were
and, as
not properly
evidence
into the
there is no predicate
occurred on
the part of
in fact, go
for a finding
any BNE
employee.
Additionally, the district court found that Grande did not suffer
any harm
see no reason to
findings.3
We
court's factual
4
Grande also brought a claim under Mass. Gen. L. ch. 93A based
upon alleged unfair actions taken by BNE.
The district court
found that Grande failed to satisfy his burden of proving that
BNE made misrepresentations or otherwise acted unfairly toward
MPLP or Grande. While Grande argues that the district court's
that language
as modifying
Grande
sale.
the
priorities of
to receive a portion
We
agree with
in BNE's first
the
the
mortgage should
mortgages to
of the proceeds
district
be
permit
of the foreclosure
court's
ruling that
the
language in the documents that Grande relies upon simply does not
support
should
his interpretation
be altered.
Schedule A of
payment
of
For
the first
release
that the
priority of
to
Grande
under
the mortgages
to language in
provided for
the
circumstances:
The
Mortgagee
shall
issue
partial
releases of this mortgage for each newly
constructed unit upon the payment to it
the
following
by the Mortgagor
of ninety
percent
(90.0%) of the proceeds, net reasonable
costs of conveyance and partial release
fee of Forty-seven thousand two hundred
twenty-two
and
22/100
($47,222.22)
dollars per unit
to the
Mortgagee,
Vincent Grande, Trustee . . .
second
mortgagee.
anticipate
time
second
Rather,
the
provision
interest of the
seems
to
simply
they were
default.
subordinated to the
sold.
No
units were
completed
the
payment of
prior to
the
release fees,
were
extinguished.
20, 97 N.E.2d
(an agreement to
give a
partial
Grande's
recovery based
on
final contention
evidence
court
he is
district
is that
found that
demonstrating
loss of approximately
Grande
that
failed
BNE
entitled to
of construction
$200,000.
to proffer
negligently
The
credible
inspected
construction
on
the project
and/or
improperly advanced
agreement.
The district
funds
court also
found that
or that
the
of
impaired,
alleged
value
negligence.
record
which
erroneous.
the
Again,
property
was
demonstrates
Therefore,
why
BNE's
these
Grande's
by
findings
claim
based
were
on
in the
clearly
negligent
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