Joseph W. Turner, Individually and as Trustee v. Shared Towers VA, LLC & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2013-612
JOSEPH W. TURNER, INDIVIDUALLY AND AS TRUSTEE
v.
SHARED TOWERS VA, LLC & a.
Argued: November 12, 2014
Opinion Issued: December 19, 2014
Cook, Little, Rosenblatt & Manson, p.l.l.c., of Manchester (Arnold
Rosenblatt and Kathleen M. Mahan on the brief, and Ms. Mahan orally), for the
petitioner.
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Christopher G.
Aslin and Gregory E. Michael on the brief, and Mr. Michael orally), for the
respondents.
DALIANIS, C.J. The respondents, Shared Towers VA, LLC (Shared
Towers) and NH Note Investment, LLC (NH Note), have appealed, and the
petitioner, Joseph W. Turner, individually and as trustee of the Routes 3 and
25 Nominee Trust, has cross-appealed, orders of the Superior Court (O’Neill, J.)
following a bench trial on the petitioner’s petition for a preliminary injunction
enjoining a foreclosure sale and for damages and reasonable attorney’s fees.
The parties’ dispute centers around a commercial construction loan agreement
and promissory note secured by a mortgage, pursuant to which the petitioner
was loaned $450,000 at 13% interest per annum to build a home. The
respondents argue that the trial court erred when it: (1) determined that they
would be unjustly enriched if the court required the petitioner to pay the
amounts he owed under the note from November 2009 until April 2011; (2)
applied the petitioner’s $450,000 lump sum payment to principal; (3) excluded
evidence of the petitioner’s experience with similar loans; (4) ruled that,
because the promissory note failed to contain a “clear statement in writing” of
the charges owed, as required by RSA 399-B:2 (2006), the respondents could
not collect a $22,500 delinquency charge on the petitioner’s lump sum
payment of principal; and (5) denied the respondents’ request for attorney’s
fees and costs. The petitioner contends that the trial court erroneously
concluded that the respondents’ actions did not violate the Consumer
Protection Act (CPA). See RSA ch. 358-A (2009 & Supp. 2013). We affirm in
part, reverse in part, vacate in part, and remand.
I. Facts
The trial court found, or the record establishes, the following facts. The
petitioner owns property on Marks Island in Gilford and, in 2009, sought
financing to construct a home on one of his lots. Because the home was to be
constructed on an island, he was unable to obtain a construction loan with
conventional financing. Financial Resources Mortgage, Inc. (FRM) procured a
construction loan for the petitioner from Mark Butler, a private lender. On
April 9, 2009, the petitioner and Butler executed: (1) a commercial
construction loan agreement; (2) a promissory note; (3) a mortgage security
agreement and assignment; and (4) a collateral assignment of rents and leases.
Under the loan agreement, Butler agreed to loan the petitioner $450,000 as “a
bridge loan to facilitate the completion of construction” of the home. The
agreement required the petitioner to “pay [Butler] in monthly installments on
interest only on the total amount of funds loaned.” The loan was secured by
the mortgage and the collateral assignment of rents and leases. The
promissory note required the petitioner to repay the loan in full, with 13%
interest, in one year. The note obligated him to pay Butler “interest only in
Twelve (12) consecutive monthly payments of $4,875.00 each.” The first
payment was due on June 1, 2009. The final payment, consisting of all
principal, accrued interest, and charges, was due May 1, 2010. The note
provided that if the petitioner defaulted on the payment of interest and
principal due under the note, and failed to cure the default within a specified
period of time, “the entire unpaid balance of principal and interest shall, at the
option of the Holder, become due and payable at once without demand or
notice.”
The mortgage and note associated with the loan were assigned three
times. They were first assigned in May 2009 by Butler to Dodge Financial, Inc.,
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the then-trustee of BD 2009 Realty Trust. In November 2009, Kamal Doshi,
another trustee of BD 2009 Realty Trust, assigned the mortgage and note to
Shared Towers. Finally, in June 2011, Shared Towers assigned the mortgage
and note to NH Note.
From April to October 2009, the petitioner made payments consistent
with the terms of the loan agreement and note. He stopped making payments
in November 2009. In December 2009, the petitioner received a letter from the
trustee appointed in the involuntary bankruptcy of FRM, which stated, in
pertinent part:
We understand that you may have borrowed money from
FRM . . . or an entity or individual affiliated or related to [FRM]. If
you make or are obligated to make monthly payments to any such
entity or individual, you are hereby directed to make all such
future payments directly to [the bankruptcy trustee].
Please note that any payments made directly [to] any
other entity or individual, will NOT count as a credit to your
underlying obligations. All such payments must be made to
this office in order for you to receive appropriate credit. You
will NOT receive credit for any payments even if a new Trustee
has purportedly been appointed for any Trust that may hold
the mortgage on your property.
A few weeks later, the petitioner received another letter from the trustee
enclosing a bankruptcy court order. This letter stated, in pertinent part: “If
you have borrowed money from FRM . . . or from any trust or entity affiliated or
related to FRM . . . , the Order requires that you make all monthly payments,
all payments of principal, and all principal payoffs to” the bankruptcy trustee.
However, having also received demands from Butler and Doshi, the petitioner
did not make any payments.
In April 2011, a settlement was reached among Butler, Doshi, Shared
Towers, and the bankruptcy trustee (who was also the bankruptcy trustee for
Dodge Financial, Inc. and BD 2009 Realty Trust), pursuant to which, Doshi, on
behalf of Shared Towers and NH Note, took ownership of the petitioner’s loan,
mortgage, and promissory note.
On April 27, 2011, Shared Towers notified the petitioner that it was now
the holder of the loan and the debt and that the petitioner was in default of his
obligations thereunder. Shared Towers informed the petitioner that the note
had matured on May 1, 2010, and that pursuant to the note, he owed: (1)
$450,000 in principal; (2) $92,625 in interest; and (3) $24,206.25 in
delinquency charges, which included a $22,500 charge for late payment of the
lump sum principal amount. Shared Towers notified the petitioner that if he
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failed to pay those amounts on or before May 1, 2011, Shared Towers would
“pursue all of its rights and remedies” under the loan documents, including,
but not limited to, commencing foreclosure proceedings under the mortgage.
To defer the foreclosure sale, the petitioner paid Shared Towers $15,000. The
petitioner instituted the instant action in July 2011.
In July 2011, the trial court held a hearing on offers of proof on the
petitioner’s request for a preliminary injunction to enjoin the foreclosure sale.
At the hearing, the petitioner “conceded that the principal amount . . . which
[he] legitimately owe[s] is $450,000.00.” However, he disputed “interest
charges, late fees and attorney fees which have added approximately $100,000
to the debt.” The trial court ordered the petitioner to pay the $450,000 and
ordered the respondents not to foreclose on the property until further court
order. In response to the respondents’ motion for clarification and/or
reconsideration, the trial court clarified that the $450,000 payment “shall be
applied only as determined at the final hearing in this matter.” Thereafter, in
addition to remitting the $450,000 principal to the respondents, the petitioner
paid $34,125 in interest payments from an escrow account.
The trial court conducted a bench trial on the petitioner’s remaining
claims for relief. The court first decided that the respondents were not entitled
to a delinquency charge on the petitioner’s late payment of principal because
the promissory note failed to contain a “clear statement in writing” that the
charge would so apply. RSA 399-B:2. The trial court next concluded that the
respondents were not entitled to any payments from November 2009 until April
2011 because, during that time, ownership of the loan and note, was “in flux.”
The court determined that because of that fact, “[i]nterest payments, principal
payments, and associated penalties . . . should have been tolled from November
2009 through April 2011,” and that, if the petitioner were now ordered to pay
the respondents the payments that were due from November 2009 through
April 2011, the respondents would be unjustly enriched. The court further
found that the $450,000 that the petitioner remitted to the respondents
pursuant to the preliminary injunction order “satisfied the principal amount
owed.” With regard to the petitioner’s damages claim, the trial court
determined that the respondents did not violate the CPA.
The trial court ordered the parties to “provide . . . their respective
computations of total amounts paid to date and outstanding amounts due
consistent with the [court’s] findings.” The respondents argued that the
petitioner owed four months of interest payments and the corresponding 5%
penalty on each such payment, for a total of $19,500 in interest payments and
$975 in penalty payments. They also argued that they were entitled to $77,836
in defense costs, including legal fees. The petitioner conceded that he owed
three months of interest payments and two 5% penalty payments, for a total of
$14,625 in interest payments and $487.50 in penalties. The petitioner argued
that, after subtracting the $15,000 he paid to defer the foreclosure, he owed
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the respondents a total of $112.50. Based upon the parties’ computations, the
trial court determined that the petitioner owed interest and a 5% penalty for a
portion of April 2011, and all of May, June, and July 2011, for a total of
$16,891.88. The court subtracted from this amount the $15,000 the petitioner
paid to defer the foreclosure, and, thus, ordered him to pay the respondents
$1,891.88. The trial court denied the respondents’ claim for attorney’s fees
and costs. This appeal and cross-appeal followed.
II. Respondents’ Appeal
A. Unjust Enrichment
The respondents first argue that the trial court erred when it found that
they would be unjustly enriched if the petitioner were required to pay “amounts
that came due during the time that ownership of the loan was in dispute.”
“The propriety of affording equitable relief in a particular case rests in the
sound discretion of the trial court.” Axenics, Inc. v. Turner Constr. Co., 164
N.H. 659, 669 (2013) (quotation omitted). Consequently, we review a trial
court’s equitable determination for an unsustainable exercise of discretion. Id.
“Although the award of equitable relief is within the sound discretion of the
trial court, that discretion must be exercised, not in opposition to, but in
accordance with, established principles of law.” Id. (quotation omitted).
The respondents argue that unjust enrichment is not available as a
remedy here because the underlying loan agreement and promissory note
“controlled and remained in full force and effect.” (Capitalization and bolding
omitted.) They are correct. Unjust enrichment is an equitable remedy that is
available when an individual receives “a benefit which would be
unconscionable for him to retain.” Id. (quotation omitted). “It is not a
boundless doctrine, but is, instead, narrower, more predictable, and more
objectively determined than the implications of the words unjust enrichment.”
Id. (quotation omitted). “One general limitation is that unjust enrichment may
not supplant the terms of an agreement.” Id. This is so because “restitution is
subordinate to contract as an organizing principle of private relationships, and
the terms of an enforceable agreement normally displace any claim of unjust
enrichment within their reach.” Id. (quotation, ellipsis, and brackets omitted);
see Restatement (Third) of Restitution and Unjust Enrichment § 2 comment c
at 17 (2011). Thus, a “court cannot allow recovery under a theory of unjust
enrichment when there is a valid, express contract covering the subject matter
at hand.” Axenics, 164 N.H. at 669.
Here, the dispute over the ownership of the loan agreement and
promissory note did not eliminate the petitioner’s obligations under them.
Under the loan agreement and promissory note, the petitioner was required to
pay $4,875 monthly. There was never a dispute regarding the petitioner’s
obligation to make those payments; the dispute was about to whom the
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payments should be made. Under those circumstances, contrary to the trial
court’s decision, the petitioner’s obligation to make the payments was not
tolled. Because the loan agreement and note remained viable, it was error for
the trial court to have afforded the petitioner a remedy under an unjust
enrichment theory.
The petitioner argues that he was entitled to such a remedy because
“there is no language in the loan agreement which in any way addresses the
series of events that led to [his] unjust enrichment claim here.” He asserts that
neither the loan agreement nor the promissory note directed “the parties on the
appropriate behavior when the loan was, for all intents and purposes, simply
frozen for a period of eighteen months, when not two, but three different
parties were fighting over ownership of the Note and demanding payments, and
where the borrower, attempting to get out of the exceptionally high interest rate
associated with this bridge loan, simply was unable to obtain conventional
financing.” Thus, he reasons, this case fits within an exception to the general
rule that one may not recover under an unjust enrichment theory when there
is a valid contract in place that pertains to the same subject matter. See id. at
669-70. Here, he argues, “there was no agreement in place” during the time in
which ownership of the loan and note were in dispute, “and thus, no basis for
[the] respondents’ demanded retroactive interest, among other charges and
penalties.” Under those circumstances, he asserts, the respondents’ demands
“were outside the scope of the agreement,” which makes unjust enrichment an
available remedy.
The exception to which the petitioner refers allows contracting parties to
recover under an unjust enrichment theory when “the benefit received is
outside the scope of the contract.” Id. at 670. Here, to the contrary, the
benefit the petitioner received – use of the money loaned to him under the loan
agreement – is the very subject of the loan agreement. Similarly, the benefit
the respondents were entitled to receive – the petitioner’s interest-only
payments – is the very subject of the promissory note. The fact that the loan
agreement and promissory note were silent with respect to the course the
petitioner should take if a dispute arose about the ownership of those
obligations, “does not open the door for a quasi-contract remedy.” Anwar v.
Fairfield Greenwich Ltd., 831 F. Supp. 2d 787, 796-97 (S.D.N.Y. 2011)
(deciding, under Florida law, that “the Form Contract” precluded the plaintiffs
from recovering under an unjust enrichment theory even though that contract
was silent with regard to the “extreme contingency” raised in their lawsuit).
B. Payment of $450,000
The respondents next argue that the trial court erred when it applied the
petitioner’s payment of $450,000 to principal instead of to interest. They
contend that the court’s determination is contrary to the promissory note,
which provides that “[a]ll payments . . . shall be applied first to charges and/or
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fees, if any, then to accrued interest . . . , then to principal.” The petitioner
counters that the respondents’ argument is “illogical given the circumstances
under which the preliminary injunction order was entered and payment made.”
The trial court made its decision with regard to the payment of $450,000
in connection with its conclusion that the petitioner was entitled to a remedy
under an unjust enrichment theory. Because we cannot determine how the
trial court would have ruled upon this issue had it not considered relief under
that equitable theory, and because, given the nature of the parties’ arguments,
resolving this issue requires fact finding that must be done by the trial court in
the first instance, we vacate this part of its order and remand for further
proceedings. On remand, the trial court shall consider the merits of the
respondents’ assertion that the promissory note, in fact, required that the
payment be applied first to charges and/or fees or accrued interest before
being applied to principal.
C. Evidence of Petitioner’s Experience with Similar Loans
The respondents next contend that the trial court erroneously excluded
evidence of the petitioner’s experience with similar loans. On the first day of
trial, the respondents asked the court to review the petitioner’s responses to
their requests for admission and to rule upon the validity of his objections
thereto. The petitioner objected to several requests on relevancy grounds, and
the court upheld those objections. The respondents argue that in so doing, the
trial court erred. However, the respondents have not provided either their
requests for admission or the petitioner’s responses as part of the record on
appeal. It is the burden of the respondents, as the parties appealing the trial
court’s decision on this issue, to provide a sufficient record. See Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 13. Absent
the requests for admission and the petitioner’s responses, we must assume
that the record supports the trial court’s determination that the requests at
issue sought irrelevant information. See Bean, 151 N.H. at 250.
D. Delinquency Charge
The respondents next argue that the trial court erroneously precluded
them from recovering a 5% delinquency charge on the petitioner’s late lump
sum payment of principal because that charge was not disclosed properly
within the meaning of RSA 399-B:2. RSA 399-B:2 provides:
Any person engaged in the business of extending credit shall
furnish to each person to whom such credit is extended,
concurrently with the consummation of the transaction or
agreement to extend credit, a clear statement in writing setting
forth the finance charges, expressed in dollars, rate of interest, or
monthly rate of charge, or a combination thereof, to be borne by
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such person in connection with such extension of credit as
originally scheduled.
“‘Finance charges’ includes charges such as interest, fees, service charges,
discounts, and other charges associated with the extension of credit.” RSA
399-B:1, II (2006).
The loan agreement provided that in the event that the petitioner
defaulted, the lender could “impose . . . a delinquency charge as set forth in the
Note.” The note stated that the lender could impose “a delinquency charge at
the rate of Five percent (5%) on each installment of principal and/or interest
not paid on or before fifteen (15) calendar days after such installment is due.”
The petitioner also received a “STATEMENT OF FINANCE CHARGES[:] NEW
HAMPSHIRE RSA 399-B” (emphasis omitted), which provided, in pertinent
part:
The interest rate is to be fixed at Thirteen Percent (13%) per
annum for One (1) Year from the date of the Note. During the term
of the Note, payment of principal and interest shall be made in
monthly installments of $4,875.00 each. . . . The amount of the
monthly payments will always be sufficient to repay interest only
and at the conclusion of the One (1) Year period[,] the principal,
plus all accrued interest, fees and expenses of the loan shall be
payable in full. On May 1, 2010, the principal balance and any
accumulated interest shall be due and payable in full. All
payments made under the Note shall be applied first to charges
and/or fees, if any, then to accrued interest at the rate stated
above, then to principal.
In addition, Lender may impose upon the Borrower a
delinquency charge at the rate of Five Percent (5%) on each
installment of interest not paid on or before fifteen (15) calendar
days after such installment is due.
The trial court concluded that the delinquency charge was a “finance
charge” within the meaning of RSA 399-B:1, II, and, therefore, pursuant to RSA
399-B:2, had to be disclosed in a “clear statement in writing,” furnished to the
petitioner “concurrently with” the loan agreement and promissory note. The
trial court further concluded that the respondents failed to provide a “clear
statement” to the petitioner that the 5% delinquency charge would apply to
principal payments because the RSA chapter 399-B statement of finance
charges stated that the delinquency charge was a charge “on each installment
of interest,” while the promissory note stated that it was a charge “on each
installment of principal and/or interest.” The court decided that, although the
documents made clear that a delinquency charge applied to the monthly
interest-only payments, they did not make clear that such a charge also
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applied to the lump sum payment of principal. Thus, the trial court ruled that,
pursuant to the statement of finance charges, the respondents were entitled to
collect a delinquency charge only on delinquent monthly interest payments.
The respondents first argue that the trial court erred by determining that
the delinquency charge constituted a “finance charge” within the meaning of
RSA 399-B:1, II. “We are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole.” Frost v. Comm’r,
N.H. Banking Dep’t, 163 N.H. 365, 374 (2012). “When examining the language
of the statute, we ascribe the plain and ordinary meaning to the words used.”
Id. “We interpret legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include.” Id. “We also interpret a statute in the
context of the overall statutory scheme and not in isolation.” Id. We review
issues of statutory interpretation de novo. Id.
Here, we agree with the trial court that the delinquency charge is a
“finance charge” within the meaning of RSA 399-B:1, II because it is a “charge”
associated with the respondents’ “extension of credit” to the petitioner. RSA
399-B:1, II. The respondents assert that because such a charge on the
petitioner’s lump sum payment would be incurred only “after the loan was
scheduled to be repaid,” it is not a “finance charge” that had to be disclosed.
We are not persuaded. See DeCato Brothers, Inc. v. Westinghouse Credit
Corp., 129 N.H. 504, 508-09 (1987) (holding that a prepayment penalty
constituted a finance charge within the meaning of RSA 399-B:1, II, and that
the failure to disclose such a penalty in a clear statement in writing violated
RSA 399-B:2).
Alternatively, the respondents argue that the promissory note and
statement of finance charges satisfied RSA 399-B:2 with regard to imposing a
delinquency charge on the petitioner’s lump sum payment of principal. We
disagree. As the trial court observed, “[c]onflicting disclosures cannot satisfy
RSA 399-B:2’s stated requirement of providing ‘a clear statement’ because
conflicting information is by its very nature unclear.” Here, the information
provided to the petitioner made clear that the delinquency charge would apply
to his monthly interest-only payments. However, that information did not
make clear that the charge would also apply to his lump sum payment of
principal. Accordingly, the trial court did not err when it allowed the
respondents to recover a 5% penalty on delinquent interest payments, but
precluded them from recovering a 5% penalty on the delinquent lump sum
payment of principal.
E. Attorney’s Fees and Costs
Finally, the respondents argue that the trial court erroneously disallowed
recovery of their reasonable attorney’s fees and costs. After the bench trial, the
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trial court ordered the parties to “provide . . . their respective computations of
total amounts paid to date and outstanding amounts due.” In complying with
that order, the respondents included their reasonable attorney’s fees and costs
in their “computation of . . . outstanding amounts due.” Specifically, they
sought $77,836 in fees and costs associated with defending against the
petitioner’s action and $25,945 in fees and costs associated with their
collection and foreclosure action.
The trial court ruled that the respondents were not entitled to recover
any of their fees and costs. The court first decided that the respondents had
not established a basis for recovery of fees and costs. The court rejected their
assertion that section 14.3 of the loan agreement allowed them to recover their
fees and costs. The court concluded that this provision did not apply because
“[t]his was not a collection action commenced by the respondents,” but rather
was a petition for “an injunction and other relief and commenced by the
borrower.” The trial court did not separately address the $25,945 that the
respondents incurred in bringing their foreclosure action. Alternatively, the
trial court concluded that, even if section 14.3 of the loan agreement applied,
the respondents had “failed to demonstrate that the amount sought is
reasonable and does not encompass amounts claimed elsewhere in the table of
amounts claimed.”
The respondents first assert that the trial court erred when it impliedly
ruled that section 14.3 of the loan agreement did not allow them to recover the
fees and costs incurred in the foreclosure action. “An award of attorney’s fees
must be grounded upon statutory authorization, a court rule, an agreement
between the parties, or an established exception to the rule that each party is
responsible for paying his or her own counsel fees.” In the Matter of Hampers
& Hampers, 154 N.H. 275, 289 (2006) (quotation omitted). We review the trial
court’s interpretation of section 14.3 of the loan agreement de novo, giving the
language used by the parties its reasonable meaning. See In the Matter of
Liquidation of Home Ins. Co., 157 N.H. 543, 546 (2008). We review the trial
court’s actual award of attorney’s fees under our unsustainable exercise of
discretion standard. Id. at 290.
Section 14.3 of the loan agreement provides: “Borrower shall pay all
costs, expenses, charges, including attorney’s fees, incidental to or relating to
the Loan and to the collection thereof and to the foreclosure of the Loan
Documents . . . .” The fees and costs that the respondents incurred in bringing
their foreclosure action are expressly encompassed in this provision.
Accordingly, the trial court unsustainably exercised its discretion by ruling that
those fees and costs were not recoverable pursuant to section 14.3 of the loan
agreement.
The respondents next argue that the trial court erred when it determined
that section 14.3 does not allow them to recover their attorney’s fees and costs
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incurred in the instant proceeding initiated by the petitioner. The trial court
interpreted this provision to allow the respondents to recover their attorney’s
fees and costs only in a collection proceeding and/or foreclosure action that
they initiated. However, the plain meaning of the provision allows the
respondents to recover their attorney’s fees and costs in any action that is
“incidental to or relating to the Loan and to the collection thereof and to the
foreclosure of the Loan Documents.” (Emphasis added.)
The instant proceeding, although initiated by the petitioner, relates to the
loan and its collection and to the respondents’ foreclosure action. The
petitioner’s petition sought: (1) a declaration regarding whether he owed the
amounts the respondents claimed he owed on the loan; (2) a declaration
regarding whether the respondents had the right to foreclose on the property;
(3) a declaration regarding whether the loan agreement was valid; (4)
disgorgement of “all applicable interest[ ], costs, and attorneys’ fees” the
respondents “unjustly obtained and unconscionably retained” pursuant to the
loan agreement and promissory note; and (5) damages for the respondents’
allegedly unlawful conduct in brokering the loan. Because the petition relates
to the loan and its collection and to the respondents’ foreclosure action, section
14.3 of the loan agreement entitles the respondents to recover the reasonable
attorney’s fees and costs they have incurred in this proceeding. We hold,
therefore, that the trial court’s determination that section 14.3 does not apply
to the fees and costs the respondents incurred in this proceeding constitutes
an unsustainable exercise of discretion.
The respondents next contend that the trial court erred when it
concluded that they had failed to demonstrate that the fees and costs they
incurred were reasonable. The trial court found “several penalties on late
interest payments” were included in the $77,836 the respondents claimed for
fees and costs incurred in the instant proceeding. Our review of the record on
appeal does not support this finding. Accordingly, we cannot uphold it.
In light of the trial court’s errors with regard to the attorney’s fees and
costs claimed by the respondents, we vacate its order denying them, and
remand for it to reconsider the respondents’ request for fees and costs. On
remand, the court may hold such further proceedings upon the respondents’
request as it may deem necessary, consistent with this opinion.
III. Petitioner’s Cross-Appeal
The petitioner cross-appeals the trial court’s determination that the
respondents’ conduct did not violate the CPA. The petitioner argues that the
respondents violated the CPA because, despite competing claims of ownership,
they demanded that he make payments under the promissory note and
initiated a collection and foreclosure action. The petitioner further asserts that
the respondents acted unfairly because they rejected his offer to settle the
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matter and insisted that he pay what he owed under the loan agreement and
promissory note. The trial court rejected these arguments.
We will uphold the trial court’s findings of fact and rulings of law unless
they lack evidentiary support or constitute a clear error of law. Axenics, 164
N.H. at 675. Under RSA 358–A:2, “[i]t shall be unlawful for any person to use
any unfair method of competition or any unfair or deceptive act or practice in
the conduct of any trade or commerce within this state.” We have previously
recognized that, although this provision is broadly worded, not all conduct in
the course of trade or commerce falls within its scope. Id. “An ordinary breach
of contract claim, for example, is not a violation of the CPA.” Id. (quotation
omitted). In determining which commercial actions not specifically delineated
are covered by the CPA, we have employed the “rascality” test. Id. Under the
rascality test, “the objectionable conduct must attain a level of rascality that
would raise an eyebrow of someone inured to the rough and tumble of the
world of commerce.” Id. at 675-76 (quotation omitted).
Here, we agree that the respondents did not violate the CPA by: (1)
requiring the petitioner to honor his obligations under the loan agreement and
promissory note; (2) enforcing their rights under those documents by initiating
a collection and foreclosure action upon his default; and (3) rejecting his offer
of compromise. These actions do not, as a matter of law, “raise an eyebrow of
someone inured to the rough and tumble of the world of commerce.” Id.
(quotation omitted). Accordingly, we find no error in the trial court’s rejection
of the petitioner’s CPA claim.
IV. Conclusion
For all of the reasons we have discussed, we affirm the trial court’s: (1)
exclusion of evidence of the petitioner’s experience with similar loans; (2)
determination that the respondents cannot collect a $22,500 delinquency
charge on the petitioner’s lump sum payment of principal; and (3) conclusion
that the respondents’ actions did not violate the CPA. We reverse the trial
court’s conclusion that the petitioner was entitled to a remedy under an unjust
enrichment theory. Additionally, we vacate the trial court’s determination that
the petitioner’s payment of $450,000 should be applied to principal and its
decision not to award the respondents any of their claimed attorney’s fees and
costs. We remand for further proceedings consistent with this opinion.
Affirmed in part; reversed
in part; vacated in part;
and remanded.
HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
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