Opinion
11-P-579
03-07-2012
BANK OF AMERICA, N.A. v. DAVID G. CALARESE & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant David G. Calarese appeals from a summary judgment entered in favor of the plaintiff, Bank of America, N.A. (Bank of America). Calarese claims error in an order striking portions of an affidavit submitted in opposition to the bank's summary judgment motion, and in the allowance of summary judgment. We affirm the judgment.
The parties agree that Bank of America loaned a total of $4.5 million to Autumn Gate Estates, LLC (Autumn Gate), secured by a property in Millbury, Massachusetts, and that Calarese personally guaranteed the loans. When the notes matured, Autumn Gate defaulted by failing to repay the amounts owed, and Bank of America foreclosed on the property. After the foreclosure sale, there remained a deficiency of over $1 million. Bank of America brought the present action to recover the deficiency from Calarese.
Calarese asserts that prior to foreclosure, he and Bank of America entered into a new agreement, subject to a number of conditions including an appraisal of the property, to extend the loan and to allow Autumn Gate to finish construction and recoup some of its costs. Calarese claims that he invested more money in the project in reliance on the new agreement, but that when Bank of America obtained the appraisal, it decided to foreclose on the property rather than to extend the loan as agreed. He further contends that Bank of America acted in bad faith in its handling of the appraisal.
We review decisions to grant summary judgment de novo. See Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011). Summary judgment is appropriate when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006). We consider whether, viewing the evidence in the light most favorable to the nonmoving party (Calarese), 'all material facts have been established' and Bank of America 'is entitled to judgment as a matter of law.' Massachusetts Insurers Insolvency Fund v. Smith, 458 Mass. 561, 564 (2010), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
In support of his contentions, Calarese relies principally on an affidavit from his attorney, Robert Loventhal. The judge allowed Bank of America's motion to strike the affidavit in significant part.
The judge allowed the motion to strike with respect to paragraphs five, six, seven, eight, nine, eleven, twelve, and thirteen.
Affidavits must be 'made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). Affidavits must state 'facts, not expressions of belief or understanding; and the facts must be specific and admissible in evidence.' Building Commr. of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709, 720 (2000), quoting from Smith & Zobel, Rules Practice § 56.6 (Supp. 2000).
As the motion judge observed, much of the affidavit consisted either of hearsay or conclusory statements. For example, Loventhal avers that '[t]he meeting [with Bank of America] went well' and '[t]he sale of lot[s] and/or homes at these prices would have yielded Autumn Gate a handsome profit.' Loventhal further asserts that the appraiser's use of the 'liquidation method' is evidence of bad faith, but Loventhal did not see the appraisal and offers no basis for his alleged knowledge of which method the appraiser used. Though Loventhal asserts in conclusory fashion his legal conclusion that the parties entered into an agreement, he offers no subsidiary facts to support such a conclusion, and the other evidence in the summary judgment record (including Calarese's deposition testimony) reveals that the parties did not form a completed agreement. We discern no abuse of discretion in the judge's order striking the specified paragraphs of Loventhal's affidavit. Without the stricken paragraphs from the Loventhal affidavit there are no genuine issues of material fact. Entry of summary judgment was proper, and the judgment is affirmed.
He also offers no explanation why using the liquidation method would constitute bad faith.
Calarese admitted in his deposition that Bank of America 'didn't promise money' and that there was never a written or signed version of the new agreement. In response to Bank of America's statement of facts supporting its motion for summary judgment, Calarese also admitted that it had 'not enter[ed] into any new agreement with Calarese.' He also admitted that '[d]uring and after the meeting' at which Calarese claims the parties made a new oral agreement, Bank of America had reserved all of its rights and remedies under the original agreements.
Bank of America argues that any oral agreement reached would be unenforceable under the Statute of Frauds. Because we conclude that there is no admissible evidence supporting the existence of a new agreement, oral or otherwise, we need not reach the issue.
In its brief, Bank of America has requested an award of appellate attorney's fees and costs. We allow that request pursuant to section 12 of the contract of guaranty. Consistent with the procedure outlined in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), Bank of America shall submit to the clerk of this court, within fourteen days of the date of the rescript, its petition for such reasonable fees and costs supported by appropriate documentation. Calarese shall have fourteen days thereafter to respond.
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So ordered.
By the Court (Green, Brown & Agnes, JJ.),