USCA1 Opinion

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

Bombardier were on brief for appellee.

__________

Ann S. DuRoss and

_______________

Colleen
_______

____________________

June 6, 1996
____________________

BOWNES, Senior Circuit Judge.

This appeal concerns

BOWNES, Senior Circuit Judge.

____________________

federal banking

doctrine

law and

established

by

the scope of

the

Supreme

D'Oench, Duhme & Co. v. FDIC,

_____________________________

U.S.C.

1823(e).

seeks

review

that

the

to

deficiency

LeBlanc

owed

district

and

FDIC's

on

Associates,

January 5,

the

the

315 U.S. 447

court's

summary judgment.

defenses

response

Court's

Defendant-appellant

of the

FDIC's motion for

the federal

1989, were barred

D'Oench doctrine.
_______

We

(1942), and

Donald

note

L. LeBlanc

LeBlanc

he

to

raised

recover

and his

"LeBlanc")

the

this decision,

in

the

company,

executed

by both Massachusetts

affirm

12

The district court held

affirmative suit

(collectively

decision in

order granting

counterclaims

a mortgage

estoppel

on

law and

but

on

slightly

district

different grounds

court.

Title

than

those

28

U.S.C.

articulated by

1291

the

provides

jurisdiction.

I.
I.

BACKGROUND
BACKGROUND
__________

For the purpose of

grant

of summary

reviewing the district

judgment, we

summarize

light most favorable to the nonmoving party.

F.3d 1054, 1056 (1st Cir. 1993).

partially-completed,

in the

Levy v. FDIC, 7
____________

In 1987, appellant acquired

the 54-acre parcel at issue in this case.

is located in Falmouth,

the facts

court's

The parcel, which

Massachusetts, and abuts a 900-acre,

residential

community called

Falmouth

-22

Woods, is accessible by

only one road, Falmouth

Woods Road.

Though appellant purchased the parcel without first obtaining

right

of way

ultimately

parcel

over Falmouth

to acquire

into

Woods

such an easement

six-lot,

multifamily

Road, his

intent was

and to

develop his

subdivision

called

Prospect Hills.

At the time LeBlanc purchased

both the Falmouth Woods

which

fronts

the property,

development and Falmouth Woods Road,

the LeBlanc

parcel's

western

boundary, were

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

a Massachusetts corporation.

On January

Prospect Hills

from

5, 1989, to finance

parcel, LeBlanc

development of the

obtained a $750,000.00

loan

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

personal guaranty note executed by LeBlanc and

the 54-acre parcel.

beginning in February

Payment on the note

of 1989, with

secured

by

a mortgage on

was to be monthly,

the provision that

the

principal balance, plus accrued

and unpaid interest, were to

be paid by January 4, 1992.

LeBlanc

Prospect

and, in

securing

obtained

approval and

Hills subdivision from

permit

for the

the Falmouth Planning Board

the Fall of 1989, began meeting with FWDC to discuss

access rights

over

Falmouth Woods

-33

Road.

During

negotiations,

FWDC

verbally

agreed

to

grant

LeBlanc

an

easement for utilities and right of way across Falmouth Woods

Road.

A written agreement regarding

was never prepared.

the easement, however,

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

extending LeBlanc the loan to develop Prospect

result, held

a mortgage

in the Falmouth

prior to

Hills and, as

Woods property,

sought and obtained relief from the

automatic stay placed on

FWDC's

bankruptcy filing.

operated

estate as

the

a result

Falmouth

of the

Woods

property as

mortgagee

BNE

in

possession, briefly continuing service

golf

course, and

lots.

the

tried to

It eventually

property at

at the Falmouth Woods

sell Falmouth

foreclosed

the subsequent

Woods subdivision

its mortgage and purchased

foreclosure sale.

FWDC's mortgage did not include the fee

Because

interest in Falmouth

Woods Road, the foreclosure sale purchase left BNE with title

to Falmouth Woods and

The fee

interest in

an easement over Falmouth

the road remained

with the

Woods Road.

bankruptcy

trustee assigned to manage FWDC's assets.

The Falmouth Woods

times

after

BNE's

LeBlanc's efforts

Road.

In

property changed hands

foreclosure-sale

to obtain an easement

purchase,

several

thwarting

over Falmouth Woods

September 1990, BNE transferred the Falmouth Woods

-44

property

to

its

Company ("FLC").

wholly-owned

In

subsidiary,

January 1991, the

Falmouth

Comptroller of

Land

the

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

insolvent

and appointed the FDIC

also chartered

the New Bank

receiver of BNE.

of New England,

The COC

N.A. ("NBNE"),

pursuant to 12 U.S.C.

1821(n), as

the assets formerly held

by BNE.

a bridge bank to acquire

Thus, NBNE held title

the FWDC property, as well as LeBlanc's

to

$750,000.00 note and

guaranty from January to July of 1991.

On

appointed

U.S.C.

and

13,

1991,

the COC

the FDIC as receiver

1821(n)(12).

The

dissolved

of the bank,

NBNE

and

pursuant to 12

FDIC then acquired Falmouth Woods

assumed the note and the mortgage on the LeBlanc parcel.

On August 13,

in

July

Falmouth

subsidiary.

1991, the FDIC took title to

Woods

NBNE

Road

in

the

name

of

the fee interest

FLC,

the

NBNE

had purchased the fee interest in Falmouth

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

LeBlanc pursued his

Falmouth Woods's

easement request with

owners because

the Prospect Hills

each of

parcel,

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

without

BNE,

access to

Falmouth Woods

Road.

Negotiations with

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

functioned

as

unsuccessful.

and the

asset manager

for

Attempts to obtain

both

a right of

FDIC were also unsuccessful,

-55

FLC and

BNE,

were

way from NBNE

primarily because both

entities

engaged

in

acquisition efforts.

actions

which

NBNE contested

blocked

LeBlanc's efforts

resolve his road access problems through direct

with

the

FWDC

successful

in outbidding

Falmouth Woods

also

bankruptcy

Road.

misrepresented the

Falmouth

notice

Woods

of

trustee

LeBlanc

LeBlanc

attempted to accelerate payment

honor a

loan commitment made to

entity, DDM

reservation

further

ultimately

fee interest

they were

in

NBNE officials

marketing the

of

asserts

on his note by

to

negotiations

was

According to LeBlanc,

property without

claims.

and

for the

fact that

LeBlanc's

rights or

that

NBNE

declining to

another LeBlanc development

Development Corporation

("DDM"), and making

an

easement across Falmouth Woods Road contingent upon increased

collateralization of

LeBlanc

imputes a

the note

similar

or a reduction

bad intent

to

in principal.

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.

1991,

Then, in

a November 13,

letter, LeBlanc informed the FDIC, which held title to

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

refusal

to convey

discontinue

would

not

resolved.

the

payments on

requested easement

the

resume payments

On

entitled him

$750,000.00 note

until

the

and that

easement matter

November 21, 1991, the FDIC made

to

he

was

a demand for

-66

full payment of the

failed

1992,

When LeBlanc

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

foreclosed and

$235,000.00 at

Trustee

outstanding note balance.

of

sold the

auction.

the

Prospect Hills

property for

Appellant's son, Mark

McAuliffe

Nominee

Trust,

LeBlanc, as

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

LeBlanc

answer

count

filed

an

and

three

21, 1992,

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

all contracts made under

and fair dealing implicit

Massachusetts law.

See Mass.
___

in

Gen.

L.

ch. 106

1-203 (1990).

contract under Mass. Gen.

secured transactions.

Count

L. ch. 106

Count III

II alleged

9-106,

a breach of

which governs

raised claims in

tort for

intentional infliction of emotional distress.

On

the FDIC

February 17, 1993,

moved for judgment

Fed. R. Civ. P.

before a

on the

pleadings, pursuant

12(c), and argued that the

-77

magistrate judge,

to

federal estoppel

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

three

LeBlanc

counterclaims.

1823(e)

preempted

nor

his

Massachusetts

from asserting

his defenses

and

LeBlanc contended that neither section

the common

law

counterclaims.

common law

and

D'Oench
_______

He

the

doctrine it

maintained

codifies

that,

Uniform Commercial

("UCC"), the duties allegedly breached by the

under

Code

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

acquire

a right

dismissed

those

appellant's

holding

of

way over

allegations

counterclaim which

that

all other

. . . in [his]

the

road."

in

counts

relied

allegations,

on

taken

It,

attempt to

therefore,

and

that

III

of

agreement,

as true,

were

legally sufficient to survive Rule 12(c).

The

magistrate

appellant's counterclaim,

ch. 106

9-507

judge

ruled

which was

and focused

that

count

based on Mass.

on the FDIC's

II

of

Gen. L.

conduct at

the

August

1991

foreclosure auction,

survived

the Rule

12(c)

-88

motion

because,

unlike

exclusively on state law.

resolve

available

that

to

claim

her

counts

and III,

it

She did not, however,

because

insufficient

she

to

found

decide

the

the

was

based

attempt to

information

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

order

accepting

magistrate

LeBlanc's

capacity

judge,

13, 1993,

the

Report

with

and

the

issued an

Recommendation

two modifications.

counterclaims against

and reserved

the district court

the

It

dismissed

in its

corporate

which party

bears the

the FDIC

issue of

of

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

order

allowing

affirmative

27, 1994, the district

summary

claim for

post-judgment interest.

magistrate

has

for

the deficiency

the

that the

much of LeBlanc's answer

presented no

defense

-99

FDIC

due on

The district court

judge's determination

doctrine barred

"LeBlanc

judgment

court issued an

that

on

its

the note

and

agreed with the

federal estoppel

and concluded that

would excuse

his

default."

The court also granted the FDIC's summary judgment

motion with respect to appellant's

It

reaffirmed

the

magistrate

three-count counterclaim.

judge's

conclusion

that

appellant's counterclaims were barred to the extent that they

were

based on

consequently,

side agreement

only considered

or

the

affirmative duty

state

law issues

and,

which

survived the magistrate judge's order.

Without

1823(e) permit

as

a matter

deciding

whether

D'Oench
_______

and

section

claims based on terms implied in an agreement

of

state law,

the

district court

held

that

appellant's allegations,

even if true, did

not constitute a

breach

covenant of

faith

of

the

dealing.

implied

Noting

good

that Massachusetts law

and

does not

fair

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

FDIC failed

also held that LeBlanc's

to handle

its secured collateral,

Hills parcel, in accordance with

507, could

secured

Finally,

not stand

transactions

the

appellant's

claim that the

Mass. Gen. L. ch. 106

because that

where the

district

intentional

court

the Prospect

statute does

security is

granted

infliction

of

9-

not govern

real property.

summary judgment

emotional

on

distress

counterclaim.

It concluded that

the FDIC's actions did not

-1010

amount to extreme and

of Massachusetts

outrageous behavior within the meaning

tort law,

though it acknowledged

that the

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

Woods

Road

business."

"may

[have]

constitute[d]

The court entered

rather

its judgment on

hard-nosed

May 8, 1995,

and this appeal followed.

III.
III.

DISCUSSION
DISCUSSION
__________

We review

judgment de
__

the

district court's

novo, EEOC v. Green, 76 F.3d

____ ______________

grant of

summary

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

_____ ______

56(c).

We

do

not

(1992); see also Fed. R.

___ ____

consider

appellant's intentional infliction

the

issues

Civ. P.

presented

by

of emotional distress and

Mass.

Gen. L.

failed

to

averted

heed

to in

effort at

for

Bank,
____

ch. 106,

our

9-507

counterclaims.

oft-articulated

a perfunctory

42 F.3d

appeal."

26, 36

that "issues

manner, unaccompanied

developed argumentation,

purposes of

warning

Appellant

[will be] deemed

by some

waived

Grella v. Salem Five Cent Sav.

________________________________

(1st Cir.

1994); see
___

also Executive
____ _________

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

________________________________________

Cir.)(On

appeal,

allegations

"[w]e will

that are

not

rely

developed only

upon arguments

in the

district court

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

_____ ______

-1111

and

Nor

which

the

obligation

appellant

Road.

and,

do

we consider

district

or

court

implied

in obtaining

agreement

that

on

an

the

way over

I issues

affirmative

FDIC

assist

Falmouth Woods

object to the magistrate's decision

waived his

court's order on this

counterclaim

held hinged

a right of

Appellant did not

therefore,

those

right

question.

to

appeal the

district

See Henley Drilling Co. v.

___ _______________________

McGee,
_____

36

U.S.C.

F.3d 143,

150-51 (1st

636 (b)(1)(C);

ourselves

solely

with

affirmative claims and

Cir.

1994); see
___

Fed. R. Civ. P.

LeBlanc's

72(b).

defense

to

those counterclaim I

also 28
____

We concern

the

FDIC's

arguments which

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

_______

For the sake of convenience,

the

we use "FDIC" to refer

to both

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

FDIC's claim for the

deficiency due on the $750,000.00

and entered judgment in

favor of the FDIC

$686,942.78, plus post-judgment interest.

in the amount

the

note

of

On appeal, LeBlanc

argues that the district

and section

court erroneously held that D'Oench

_______

1823(e) barred

defense that

its obligation

the FDIC,

of NBNE,

terms of

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

___

1-203, by competing with him for

-1212

to perform

as

receiver

ch. 106

breached

his

the

the fee interest

in

Falmouth Woods

Road.

He contends

economic coercion concerns the

that his

defense of

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

court's analysis.

Without deciding whether breach of implied

covenant of good faith and fair dealing claims

precluded

district

by D'Oench,
_______

advanced in this case is

we hold

that the

barred.

are generally

particular defense

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

against the

asserting

as

either a

FDIC oral agreements or

v. Zimmerman, 73
_____________

F.3d

1164, 1168

claim

or

defense

'arrangements.'"

(1st Cir.

Adams
_____

1996)(quoting

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

_______________________________________________________

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

932

Its statutory codification,

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

any

'agreement' that is not

recorded in

the

records of

in writing and

the bank."

Section 1823(e),

is not properly

Id.;
___

as

see also
___ ____

amended

U.S.C.

1823(e).

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

by

12

the

section

or section

1821 of

this title,

-1313

either

as

purchase

security
or as

depository
against

for

a loan

receiver of

institution,
the

Corporation

executed

by

the depository

and

person

interest

such

writing, (2) was

claiming

thereunder,

valid

unless

(1) is in

by

any insured

shall be

agreement --

any

or

institution
an

adverse

including

the

obligor,

contemporaneously

acquisition

of

the

the

board

of

the

by

the

asset

depository institution,
by

with

(3) was approved

directors

depository

institution

committee,

which

or

of

the

its

approval

loan

shall

be

reflected in the minutes of said board or

committee,

and

continuously,
execution,

(4)

from

an

the

official

has
time

been,
of

record

its

of

the

depository institution.

12 U.S.C.

whether

1823(e).

D'Oench
_______

Though there is some disagreement as to

and

coextensive, see Adams,

___ _____

agree that

secret

section

1823(e)

73 F.3d at

they serve the

arrangements."

be

1168-69 n.2, all

same purpose: to

agreements that tend to make

fraudulent

should

read

as

courts

"prohibi[t] all

the FDIC susceptible to

Timberland Design, Inc. v. First

_________________________________

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

The

section

It

scope of

agreements precluded by

1823(e) is expansive.

includes

promises

misrepresentations

knowledge of the

or

to

perform, as

warranties,

well

whether

fraud or misrepresentation

acquired the asset or not.

94 (1987).

See Adams, 73
___ _____

D'Oench and
_______

F.3d at 1169.

as

the

fraudulent

FDIC

at the time

had

it

Langley v. FDIC, 484 U.S. 86, 91_______________

Additionally, it embraces both affirmative claims

-1414

and defenses and

extends to arguments

contract or tort.

LeBlanc's

asserted in terms

Timberland, 932 F.2d at 49-50.

__________

main

attack

is

based

on

the

FDIC's

failure to actively assist him in obtaining a Falmouth

Road

easement upon

problem

with

$750,000.00

part

of the

$750,000.00

this

taking

control of

is that

nothing

note can be

FDIC.

of

BNE's

in

read to create

LeBlanc,

note was contingent

in

fact,

the

assets.

The

terms of

the

such a duty

admits

neither upon

Woods

on the

that

the

his obtaining

nor

the

FDIC or

its

predecessors

providing an

easement.

Accordingly, this attempt to shift the risk LeBlanc knowingly

assumed

when

he

property

to

the

creditors

F.2d at 48.

an

FDIC, and

and depositors,

land-locked

consequently,

must fail.

See
___

Prospect Hills

to

unsuspecting

Timberland, 932
__________

Permitting appellant to proceed on the

unrecorded

NBNE's

purchased the

agreement

records and

would

further

valuing NBNE's assets.

undermine

complicate the

basis of

the accuracy

of

FDIC's task

of

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

breached

its

$750,000.00 loan

that the FDIC, as

obligation

to

agreement in

perform

receiver of NBNE,

the

good faith in

terms

of

the

three regards.

-1515

He

contends that the FDIC deprived

him of the fruits of his

bargain, see
___

Mass.

DDM

Anthony's Pier Four, Inc. v. HBC Assoc.,

_________________________________________

451, 471 (1991), by

construction project

withholding funds due

and by

making an

upon provision of

collateral

note principal

reduction in

artificially

low

development.

He

extend

him an

appraisals

of

also alleges

easement

the

that the

across Falmouth

him on the

easement across

Falmouth Woods Road contingent

or a

411

additional

and utilizing

Prospect

Hills

FDIC's failure

Woods Road

to

during

work-out negotiations constitutes a breach ofthe agreement.

There is an

claims,

at least

specifics in

to

argument that D'Oench

_______

the extent

the negotiations

that

precludes these

they rely

between the borrower

upon

any

and the

bank, even if the specifics are not formally agreements.

See

___

Langley, 484
_______

U.S. at

D'Oench does not

_______

of

91-94.

in

even if

we assume

that

bar LeBlanc's breach of an implied covenant

good faith and fair

indicated

But

dealing counterclaims --

the previous

section,

we

and, as we

are certainly

not

deciding that question here -- appellant has not convinced us

that there

required

is any

general obligation under

the bank (in the

the affirmative

absence of an

state law

that

agreement) to take

steps appellant now claims

should have been

taken.

We detect

withhold

DDM project

no bad faith

funds or

in the FDIC's

to make

an

decision to

easement across

-1616

Falmouth Woods Road contingent upon

reduction in principal.

additional collateral or

Though the

FDIC's dealings with

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

the FDIC's actions

loan

agreement.

deprived LeBlanc of

See
___

Anthony's Pier,
_______________

the benefits of

411 Mass.

at

the

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

on which the FDIC proposed to

with him.

own,

But

The

execute or continue agreements

having engaged in rigorous bargaining

LeBlanc cannot now contend

FDIC to bargain

FDIC had

complaints about the terms

that it was

for more security

no duty

at all

unfair for the

on the $750,000.00

under the

of his

note.

loan agreement

to

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

terms which were more

favorable to him.

party to a bargain from engaging in

Nothing

prevents a

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

negotiating

another

-- i.e., the loan agreement

-- i.e.,

the

easement.

See
___

-- by

Burton,

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

_____________________________________________________________

Faith, 94
_____

Harv. L. Rev. 369, 372-73 (1980).

court astutely

observed,

"the

-1717

FDIC

owned

As the district

something

that

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.

duty

of

good faith

contract.

and

fair

Massachusetts law implies a

dealing

in

every

See Anthony's Pier, 411 Mass. at 472;

___ _______________

existing

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

FDIC.

theretofore enjoyed with the

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

extent that it relies on the loan agreement.

fails

to

the

extent that

it

rests

negotiate

new contracts in good faith.

that

loan

the

obligation, see
___

703,

agreement

an obligation

to

We are not convinced

any

such

contractual

Schwanbeck v. Federal-Mogul Corp., 412 Mass.

_________________________________

706 (1992),

evidence

contained

on

That claim also

that the

and

do not

FDIC entered

find,

for that

into work-out

with an ulterior purpose or bad motives.

IV.
IV.

CONCLUSION

matter,

any

negotiations

CONCLUSION
__________

-1818

For the foregoing

court's grant of summary

reasons, we affirm the

judgment.

district court is affirmed.

The judgment sum

district

of the

There will be added to that sum,

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

-1919