FDIC v. LeBlanc ( 1996 )


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    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
    ____________________

    No. 95-1641

    FEDERAL DEPOSIT INSURANCE CORPORATION, AS
    RECEIVER OF NEW BANK OF NEW ENGLAND, N.A.,

    Plaintiff, Appellee,

    v.

    DONALD L. LEBLANC AND LEBLANC ASSOCIATES, INC.,

    Defendants, Appellants.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

    ____________________

    Before

    Selya, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    and Boudin, Circuit Judge. _____________

    ____________________

    Robert B. Fredericks for appellants. ____________________
    Lawrence H. Richmond, with whom Ann S. DuRoss and Colleen B. _____________________ _______________ __________
    Bombardier were on brief for appellee. __________


    ____________________

    June 6, 1996
    ____________________




















    BOWNES, Senior Circuit Judge. This appeal concerns BOWNES, Senior Circuit Judge. ____________________

    federal banking law and the scope of the federal estoppel

    doctrine established by the Supreme Court's decision in

    D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942), and 12 _____________________________

    U.S.C. 1823(e). Defendant-appellant Donald L. LeBlanc

    seeks review of the district court's order granting the

    FDIC's motion for summary judgment. The district court held

    that the defenses and counterclaims LeBlanc raised in

    response to the FDIC's affirmative suit to recover the

    deficiency owed on a mortgage note he and his company,

    LeBlanc Associates, (collectively "LeBlanc") executed on

    January 5, 1989, were barred by both Massachusetts law and

    the D'Oench doctrine. We affirm this decision, but on _______

    slightly different grounds than those articulated by the

    district court. Title 28 U.S.C. 1291 provides

    jurisdiction.

    I. I.

    BACKGROUND BACKGROUND __________

    For the purpose of reviewing the district court's

    grant of summary judgment, we summarize the facts in the

    light most favorable to the nonmoving party. Levy v. FDIC, 7 ____________

    F.3d 1054, 1056 (1st Cir. 1993). In 1987, appellant acquired

    the 54-acre parcel at issue in this case. The parcel, which

    is located in Falmouth, Massachusetts, and abuts a 900-acre,

    partially-completed, residential community called Falmouth



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    Woods, is accessible by only one road, Falmouth Woods Road.

    Though appellant purchased the parcel without first obtaining

    a right of way over Falmouth Woods Road, his intent was

    ultimately to acquire such an easement and to develop his

    parcel into a six-lot, multifamily subdivision called

    Prospect Hills. At the time LeBlanc purchased the property,

    both the Falmouth Woods development and Falmouth Woods Road,

    which fronts the LeBlanc parcel's western boundary, were

    owned by the Falmouth Woods Development Corporation ("FWDC"),

    a Massachusetts corporation.

    On January 5, 1989, to finance development of the

    Prospect Hills parcel, LeBlanc obtained a $750,000.00 loan

    from the Bank of New England South, N.A., which later merged

    into Bank of New England, N.A. ("BNE"). The loan, which both

    parties agree was not conditioned upon LeBlanc's acquiring an

    easement across Falmouth Woods Road, was secured by a

    personal guaranty note executed by LeBlanc and a mortgage on

    the 54-acre parcel. Payment on the note was to be monthly,

    beginning in February of 1989, with the provision that the

    principal balance, plus accrued and unpaid interest, were to

    be paid by January 4, 1992.

    LeBlanc obtained approval and a permit for the

    Prospect Hills subdivision from the Falmouth Planning Board

    and, in the Fall of 1989, began meeting with FWDC to discuss

    securing access rights over Falmouth Woods Road. During



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    negotiations, FWDC verbally agreed to grant LeBlanc an

    easement for utilities and right of way across Falmouth Woods

    Road. A written agreement regarding the easement, however,

    was never prepared. Before the sale of the easement could be

    recorded, FWDC began experiencing financial difficulties and

    filed for Chapter 11 bankruptcy in March of 1990.

    BNE, which had loaned FWDC $28 million prior to

    extending LeBlanc the loan to develop Prospect Hills and, as

    a result, held a mortgage in the Falmouth Woods property,

    sought and obtained relief from the automatic stay placed on

    FWDC's estate as a result of the bankruptcy filing. BNE

    operated the Falmouth Woods property as a mortgagee in

    possession, briefly continuing service at the Falmouth Woods

    golf course, and tried to sell Falmouth Woods subdivision

    lots. It eventually foreclosed its mortgage and purchased

    the property at the subsequent foreclosure sale. Because

    FWDC's mortgage did not include the fee interest in Falmouth

    Woods Road, the foreclosure sale purchase left BNE with title

    to Falmouth Woods and an easement over Falmouth Woods Road.

    The fee interest in the road remained with the bankruptcy

    trustee assigned to manage FWDC's assets.

    The Falmouth Woods property changed hands several

    times after BNE's foreclosure-sale purchase, thwarting

    LeBlanc's efforts to obtain an easement over Falmouth Woods

    Road. In September 1990, BNE transferred the Falmouth Woods



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    property to its wholly-owned subsidiary, Falmouth Land

    Company ("FLC"). In January 1991, the Comptroller of the

    Currency of the United States of America ("COC") declared BNE

    insolvent and appointed the FDIC receiver of BNE. The COC

    also chartered the New Bank of New England, N.A. ("NBNE"),

    pursuant to 12 U.S.C. 1821(n), as a bridge bank to acquire

    the assets formerly held by BNE. Thus, NBNE held title to

    the FWDC property, as well as LeBlanc's $750,000.00 note and

    guaranty from January to July of 1991.

    On July 13, 1991, the COC dissolved NBNE and

    appointed the FDIC as receiver of the bank, pursuant to 12

    U.S.C. 1821(n)(12). The FDIC then acquired Falmouth Woods

    and assumed the note and the mortgage on the LeBlanc parcel.

    On August 13, 1991, the FDIC took title to the fee interest

    in Falmouth Woods Road in the name of FLC, the NBNE

    subsidiary. NBNE had purchased the fee interest in Falmouth

    Woods Road from the FWDC's bankruptcy trustee in May 1991.

    LeBlanc pursued his easement request with each of

    Falmouth Woods's owners because the Prospect Hills parcel,

    initially appraised at $1,980,000.00, was virtually worthless

    without access to Falmouth Woods Road. Negotiations with

    BNE, FLC, and Oak Tree Capitol ("Oak Tree"), a company which

    functioned as asset manager for both FLC and BNE, were

    unsuccessful. Attempts to obtain a right of way from NBNE

    and the FDIC were also unsuccessful, primarily because both



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    entities engaged in actions which blocked LeBlanc's

    acquisition efforts. NBNE contested LeBlanc's efforts to

    resolve his road access problems through direct negotiations

    with the FWDC bankruptcy trustee and was ultimately

    successful in outbidding LeBlanc for the fee interest in

    Falmouth Woods Road. According to LeBlanc, NBNE officials

    also misrepresented the fact that they were marketing the

    Falmouth Woods property without reservation of rights or

    notice of claims. LeBlanc further asserts that NBNE

    attempted to accelerate payment on his note by declining to

    honor a loan commitment made to another LeBlanc development

    entity, DDM Development Corporation ("DDM"), and making an

    easement across Falmouth Woods Road contingent upon increased

    collateralization of the note or a reduction in principal.

    LeBlanc imputes a similar bad intent to the FDIC, which

    failed to convey him an easement during work-out negotiations

    on the note.

    Payments on LeBlanc's $750,000.00 note were current

    and regular until the Fall of 1991. Then, in a November 13,

    1991, letter, LeBlanc informed the FDIC, which held title to

    Falmouth Woods and Falmouth Woods Road at that time, that its

    refusal to convey the requested easement entitled him to

    discontinue payments on the $750,000.00 note and that he

    would not resume payments until the easement matter was

    resolved. On November 21, 1991, the FDIC made a demand for



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    full payment of the outstanding note balance. When LeBlanc

    failed to make the requested payment, the FDIC, on August 7,

    1992, foreclosed and sold the Prospect Hills property for

    $235,000.00 at auction. Appellant's son, Mark LeBlanc, as

    Trustee of the McAuliffe Nominee Trust, purchased the

    property. The deficiency due on LeBlanc's note, the subject

    of the instant appeal, has not yet been paid.

    II. II.

    PROCEDURAL HISTORY PROCEDURAL HISTORY __________________

    On June 19, 1992, the FDIC filed an action in the

    District Court for the District of Massachusetts, seeking the

    deficiency balance on LeBlanc's note. On August 21, 1992,

    LeBlanc filed an answer and three count counterclaim,

    alleging that the FDIC's refusal to grant LeBlanc an easement

    across Falmouth Woods Road violated state law. Count I of

    the counterclaim alleged that the FDIC's actions breached the

    implied covenant of good faith and fair dealing implicit in

    all contracts made under Massachusetts law. See Mass. Gen. ___

    L. ch. 106 1-203 (1990). Count II alleged a breach of

    contract under Mass. Gen. L. ch. 106 9-106, which governs

    secured transactions. Count III raised claims in tort for

    intentional infliction of emotional distress.

    On February 17, 1993, before a magistrate judge,

    the FDIC moved for judgment on the pleadings, pursuant to

    Fed. R. Civ. P. 12(c), and argued that the federal estoppel



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    doctrine established by the Supreme Court's decision in

    D'Oench, Duhme & Co. v. FDIC, 315 U.S. at 447, and 12 U.S.C. _____________________________

    1823(e) barred LeBlanc from asserting his defenses and

    three counterclaims. LeBlanc contended that neither section

    1823(e) nor the common law D'Oench doctrine it codifies _______

    preempted his counterclaims. He maintained that, under

    Massachusetts common law and the Uniform Commercial Code

    ("UCC"), the duties allegedly breached by the FDIC arose out

    of the performance and administration of the note and not out

    of an unauthorized side agreement.

    In a May 13, 1993, order, the magistrate judge

    allowed, in part, and denied, in part, the FDIC's Rule 12(c)

    motion. The court found that the principal allegations

    raised by LeBlanc's counterclaims rested on an "implied" and,

    under the D'Oench doctrine, unenforceable "agreement that the _______

    FDIC affirmatively assist LeBlanc . . . in [his] attempt to

    acquire a right of way over the road." It, therefore,

    dismissed those allegations in counts I and III of

    appellant's counterclaim which relied on that agreement,

    holding that all other allegations, taken as true, were

    legally sufficient to survive Rule 12(c).

    The magistrate judge ruled that count II of

    appellant's counterclaim, which was based on Mass. Gen. L.

    ch. 106 9-507 and focused on the FDIC's conduct at the

    August 1991 foreclosure auction, survived the Rule 12(c)



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    motion because, unlike counts I and III, it was based

    exclusively on state law. She did not, however, attempt to

    resolve that claim because she found the information

    available to her insufficient to decide the commercial

    reasonableness of the FDIC's foreclosure actions. Finally,

    the magistrate judge rejected the FDIC's claim that a federal

    common law rule barring LeBlanc's claims should be fashioned.

    She found that LeBlanc's counterclaim was procedurally

    deficient because he failed to seek leave to name the FDIC as

    a counterclaim-defendant in its corporate capacity.

    On August 13, 1993, the district court issued an

    order accepting the Report and Recommendation of the

    magistrate judge, with two modifications. It dismissed

    LeBlanc's counterclaims against the FDIC in its corporate

    capacity and reserved the issue of which party bears the

    burden of proof on matters of "commercial reasonableness" for

    later determination. The FDIC filed a motion for summary

    judgment against LeBlanc on July 22, 1994.

    On October 27, 1994, the district court issued an

    order allowing summary judgment for the FDIC on its

    affirmative claim for the deficiency due on the note and

    post-judgment interest. The district court agreed with the

    magistrate judge's determination that the federal estoppel

    doctrine barred much of LeBlanc's answer and concluded that

    "LeBlanc has presented no defense that would excuse his



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    default." The court also granted the FDIC's summary judgment

    motion with respect to appellant's three-count counterclaim.

    It reaffirmed the magistrate judge's conclusion that

    appellant's counterclaims were barred to the extent that they

    were based on a side agreement or affirmative duty and,

    consequently, only considered the state law issues which

    survived the magistrate judge's order.

    Without deciding whether D'Oench and section _______

    1823(e) permit claims based on terms implied in an agreement

    as a matter of state law, the district court held that

    appellant's allegations, even if true, did not constitute a

    breach of the implied covenant of good faith and fair

    dealing. Noting that Massachusetts law does not impose a

    duty to enter into a contract, the court rejected appellant's

    claims that it was inappropriate for the FDIC to compete with

    LeBlanc or to use the fee interest in Falmouth Woods Road as

    a bargaining chip in its negotiations with appellant.

    The court also held that LeBlanc's claim that the

    FDIC failed to handle its secured collateral, the Prospect

    Hills parcel, in accordance with Mass. Gen. L. ch. 106 9-

    507, could not stand because that statute does not govern

    secured transactions where the security is real property.

    Finally, the district court granted summary judgment on

    appellant's intentional infliction of emotional distress

    counterclaim. It concluded that the FDIC's actions did not



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    amount to extreme and outrageous behavior within the meaning

    of Massachusetts tort law, though it acknowledged that the

    FDIC's actions in attempting to trade an easement in Falmouth

    Woods Road "may [have] constitute[d] rather hard-nosed

    business." The court entered its judgment on May 8, 1995,

    and this appeal followed.

    III. III.

    DISCUSSION DISCUSSION __________

    We review the district court's grant of summary

    judgment de novo, EEOC v. Green, 76 F.3d 19, 23 (1st Cir. __ ____ ______________

    1996), but may affirm on any independently sufficient ground.

    Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), _________________________

    cert. denied, 504 U.S. 985 (1992); see also Fed. R. Civ. P. _____ ______ ___ ____

    56(c). We do not consider the issues presented by

    appellant's intentional infliction of emotional distress and

    Mass. Gen. L. ch. 106, 9-507 counterclaims. Appellant

    failed to heed our oft-articulated warning that "issues

    averted to in a perfunctory manner, unaccompanied by some

    effort at developed argumentation, [will be] deemed waived

    for purposes of appeal." Grella v. Salem Five Cent Sav. ________________________________

    Bank, 42 F.3d 26, 36 (1st Cir. 1994); see also Executive ____ ___ ____ _________

    Leasing v. Banco Popular De Puerto Rico, 48 F.3d 66, 68 (1st ________________________________________

    Cir.)(On appeal, "[w]e will not rely upon arguments and

    allegations that are developed only in the district court

    pleadings."), cert. denied, 116 S. Ct. 171 (1995). _____ ______



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    Nor do we consider those counterclaim I issues

    which the district court held hinged on an affirmative

    obligation or implied agreement that the FDIC assist

    appellant in obtaining a right of way over Falmouth Woods

    Road. Appellant did not object to the magistrate's decision

    and, therefore, waived his right to appeal the district

    court's order on this question. See Henley Drilling Co. v. ___ _______________________

    McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); see also 28 _____ ___ ____

    U.S.C. 636 (b)(1)(C); Fed. R. Civ. P. 72(b). We concern

    ourselves solely with LeBlanc's defense to the FDIC's

    affirmative claims and those counterclaim I arguments which

    the district court held survived D'Oench and section 1823(e). _______

    For the sake of convenience, we use "FDIC" to refer to both

    the FDIC in its capacity as receiver and its predecessors in

    interest.

    LeBlanc's Defense to the FDIC's Affirmative Claims LeBlanc's Defense to the FDIC's Affirmative Claims __________________________________________________

    The district court granted summary judgment on the

    FDIC's claim for the deficiency due on the $750,000.00 note

    and entered judgment in favor of the FDIC in the amount of

    $686,942.78, plus post-judgment interest. On appeal, LeBlanc

    argues that the district court erroneously held that D'Oench _______

    and section 1823(e) barred his defense that the FDIC, as

    receiver of NBNE, breached its obligation to perform the

    terms of the loan agreement in good faith, see Mass. Gen. L. ___

    ch. 106 1-203, by competing with him for the fee interest



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    in Falmouth Woods Road. He contends that his defense of

    economic coercion concerns the value of the $750,000.00 note

    and not his failed attempts to secure a right of way.

    On this point, we discern no error in the district

    court's analysis. Without deciding whether breach of implied

    covenant of good faith and fair dealing claims are generally

    precluded by D'Oench, we hold that the particular defense _______

    advanced in this case is barred. Appellant's defense rests

    on an unwritten or implied agreement regarding a right of way

    over Falmouth Woods Road and not the terms of the $750,000.00

    note.

    The common law D'Oench doctrine "prevents _______

    plaintiffs from asserting as either a claim or defense

    against the FDIC oral agreements or 'arrangements.'" Adams _____

    v. Zimmerman, 73 F.3d 1164, 1168 (1st Cir. 1996)(quoting _____________

    Timberland Design, Inc. v. First Serv. Bank for Sav., 932 _______________________________________________________

    F.2d 46, 48-50 (1st Cir. 1991)). Its statutory codification,

    section 1823(e), "bars anyone from asserting against the FDIC

    any 'agreement' that is not in writing and is not properly

    recorded in the records of the bank." Id.; see also 12 ___ ___ ____

    U.S.C. 1823(e). Section 1823(e), as amended by the

    Financial Institutions Reform, Recovery, and Enforcement Act

    (FIRREA), provides:

    No agreement which tends to diminish or
    defeat the interest of the Corporation in
    any asset acquired by it under this
    section or section 1821 of this title,


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    either as security for a loan or by
    purchase or as receiver of any insured
    depository institution, shall be valid
    against the Corporation unless such
    agreement -- (1) is in writing, (2) was
    executed by the depository institution
    and any person claiming an adverse
    interest thereunder, including the
    obligor, contemporaneously with the
    acquisition of the asset by the
    depository institution, (3) was approved
    by the board of directors of the
    depository institution or its loan
    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.

    12 U.S.C. 1823(e). Though there is some disagreement as to

    whether D'Oench and section 1823(e) should be read as _______

    coextensive, see Adams, 73 F.3d at 1168-69 n.2, all courts ___ _____

    agree that they serve the same purpose: to "prohibi[t] all

    secret agreements that tend to make the FDIC susceptible to

    fraudulent arrangements." Timberland Design, Inc. v. First _________________________________

    Serv. Bank for Sav., 932 F.2d 46, 48 (1st Cir. 1991). ___________________

    The scope of agreements precluded by D'Oench and _______

    section 1823(e) is expansive. See Adams, 73 F.3d at 1169. ___ _____

    It includes promises to perform, as well as fraudulent

    misrepresentations or warranties, whether the FDIC had

    knowledge of the fraud or misrepresentation at the time it

    acquired the asset or not. Langley v. FDIC, 484 U.S. 86, 91- _______________

    94 (1987). Additionally, it embraces both affirmative claims





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    and defenses and extends to arguments asserted in terms of

    contract or tort. Timberland, 932 F.2d at 49-50. __________

    LeBlanc's main attack is based on the FDIC's

    failure to actively assist him in obtaining a Falmouth Woods

    Road easement upon taking control of BNE's assets. The

    problem with this is that nothing in the terms of the

    $750,000.00 note can be read to create such a duty on the

    part of the FDIC. LeBlanc, in fact, admits that the

    $750,000.00 note was contingent neither upon his obtaining

    nor the FDIC or its predecessors providing an easement.

    Accordingly, this attempt to shift the risk LeBlanc knowingly

    assumed when he purchased the land-locked Prospect Hills

    property to the FDIC, and consequently, to unsuspecting

    creditors and depositors, must fail. See Timberland, 932 ___ __________

    F.2d at 48. Permitting appellant to proceed on the basis of

    an unrecorded agreement would undermine the accuracy of

    NBNE's records and further complicate the FDIC's task of

    valuing NBNE's assets. Compare Desmond v. FDIC, 798 F. Supp. _______ _______________

    829, 839 (D. Mass. 1992); see also Langley, 484 U.S. at 92. ___ ____ _______



    LeBlanc's Counterclaim for Breach of an Implied Covenant of LeBlanc's Counterclaim for Breach of an Implied Covenant of ___________________________________________________________

    Good Faith and Fair Dealing Good Faith and Fair Dealing ___________________________

    LeBlanc avers that the FDIC, as receiver of NBNE,

    breached its obligation to perform the terms of the

    $750,000.00 loan agreement in good faith in three regards.



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    He contends that the FDIC deprived him of the fruits of his

    bargain, see Anthony's Pier Four, Inc. v. HBC Assoc., 411 ___ _________________________________________

    Mass. 451, 471 (1991), by withholding funds due him on the

    DDM construction project and by making an easement across

    Falmouth Woods Road contingent upon provision of additional

    collateral or a reduction in note principal and utilizing

    artificially low appraisals of the Prospect Hills

    development. He also alleges that the FDIC's failure to

    extend him an easement across Falmouth Woods Road during

    work-out negotiations constitutes a breach ofthe agreement.

    There is an argument that D'Oench precludes these _______

    claims, at least to the extent that they rely upon any

    specifics in the negotiations between the borrower and the

    bank, even if the specifics are not formally agreements. See ___

    Langley, 484 U.S. at 91-94. But even if we assume that _______

    D'Oench does not bar LeBlanc's breach of an implied covenant _______

    of good faith and fair dealing counterclaims -- and, as we

    indicated in the previous section, we are certainly not

    deciding that question here -- appellant has not convinced us

    that there is any general obligation under state law that

    required the bank (in the absence of an agreement) to take

    the affirmative steps appellant now claims should have been

    taken.

    We detect no bad faith in the FDIC's decision to

    withhold DDM project funds or to make an easement across



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    Falmouth Woods Road contingent upon additional collateral or

    a reduction in principal. Though the FDIC's dealings with

    LeBlanc were arguably "hard-nosed," there is no evidence that

    the FDIC's actions deprived LeBlanc of the benefits of the

    loan agreement. See Anthony's Pier, 411 Mass. at 471. ___ _______________

    LeBlanc neither disputes that he received the proceeds of the

    $750,000.00 loan nor suggests that the FDIC took adverse

    actions on the note before his November 1992 default.

    LeBlanc's arguments are complaints about the terms

    on which the FDIC proposed to execute or continue agreements

    with him. But having engaged in rigorous bargaining of his

    own, LeBlanc cannot now contend that it was unfair for the

    FDIC to bargain for more security on the $750,000.00 note.

    The FDIC had no duty at all under the loan agreement to

    extend appellant an easement, let alone to provide him one on

    terms which were more favorable to him. Nothing prevents a

    party to a bargain from engaging in hard-nosed dealings, see ___

    Schwanbeck v. Federal-Mogul Corp., 31 Mass. App. Ct. 390, 450 _________________________________

    (1991), rev'd on other grounds, 412 Mass. 703, 706 (1992), or _____ __ _____ _______

    even from attempting to capture opportunities foregone at the

    formation of one contract -- i.e., the loan agreement -- by

    negotiating another -- i.e., the easement. See Burton, ___

    Breach of Contract and the Common Law Duty to Perform in Good _____________________________________________________________

    Faith, 94 Harv. L. Rev. 369, 372-73 (1980). As the district _____

    court astutely observed, "the FDIC owned something that



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    LeBlanc wanted, and it was permissible for the FDIC to use

    that 'something' as a bargaining chip in order to obtain what

    it wanted, namely more security on the $750,000.00 note."

    Finally, we reject LeBlanc's claim that the FDIC

    breached its obligation to perform in good faith during work-

    out negotiations with appellant. Massachusetts law implies a

    duty of good faith and fair dealing in every existing

    contract. See Anthony's Pier, 411 Mass. at 472; Fortune v. ___ _______________ __________

    Nat'l Cash Register Co., 373 Mass. 96 (1977); Schwanbeck, 31 ________________________ __________

    Mass. App. Ct. at 397 n.6. At the time the work-out

    negotiations occurred, however, there was no contract between

    the FDIC and LeBlanc. LeBlanc's November 1992 default ended

    the contractual relationship he theretofore enjoyed with the

    FDIC. We, therefore, hold that LeBlanc's claim fails to the

    extent that it relies on the loan agreement. That claim also

    fails to the extent that it rests on an obligation to

    negotiate new contracts in good faith. We are not convinced

    that the loan agreement contained any such contractual

    obligation, see Schwanbeck v. Federal-Mogul Corp., 412 Mass. ___ _________________________________

    703, 706 (1992), and do not find, for that matter, any

    evidence that the FDIC entered into work-out negotiations

    with an ulterior purpose or bad motives.

    IV. IV.

    CONCLUSION CONCLUSION __________





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    For the foregoing reasons, we affirm the district

    court's grant of summary judgment. The judgment sum of the

    district court is affirmed. There will be added to that sum,

    $686,942.78, such post-judgment interest as is due.













































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