McCarthy v. WPB Partners, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Hersey McCarthy
v. Civil No. 16-cv-081-LM
Opinion No. 2017 DNH 222
WPB Partners, LLC
O R D E R
Mary Hersey McCarthy brings suit, alleging claims against
WPB Partners, LLC (“WPB”) that arose from WPB’s foreclosure and
sale of McCarthy’s mortgaged property. Following the court’s
orders on WPB’s motion to dismiss and McCarthy’s motion for
summary judgment, see doc. nos. 10 & 27, the only remaining
claims in this case are McCarthy’s claims for violation of the
duty of due diligence and violation of the duty of good faith.
WPB now moves for summary judgment on those claims,1 and
McCarthy objects.
STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
1 WPB also moves for summary judgment on plaintiff’s claim for
breach of contract. As discussed above, the court previously
granted McCarthy’s motion for summary judgment on that claim.
See doc. no. 27. Accordingly, WPB’s motion is denied as to
McCarthy’s claim for breach of contract.
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it] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013).
BACKGROUND2
Through a promissory note dated December 21, 2006, McCarthy,
whose name was then Mary Hersey, borrowed $350,000 from
Investment Realty Funding, Inc. and signed a mortgage the same
day to secure the loan. The mortgaged property was undeveloped
land on Mirror Lake in Tuftonboro, New Hampshire (“the
property”). WPB acquired the note and mortgage in August 2009
after Investment Realty filed for bankruptcy protection. When
the note matured on December 21, 2009, WPB demanded payment.
McCarthy failed to pay, and WPB began foreclosure proceedings,
scheduling a foreclosure sale for October 22, 2010.
I. Previous Litigation Regarding the Foreclosure
On October 4, 2010, McCarthy filed an action in state court
seeking a temporary restraining order to halt the foreclosure
sale. The state court did not grant McCarthy’s request for a
2 The court provided a detailed history of the complex
background of this case in its order granting McCarthy’s partial
motion for summary judgment. For that history, see doc. no. 27.
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temporary restraining order but did grant a preliminary
injunction following a hearing. The state court then granted
leave to McCarthy to amend her complaint to add new claims and
leave to WPB to assert a counterclaim for breach of contract
based on the note. WPB then removed the case to this court.
See Hersey v. WPB Partners, LLC, 11-cv-207-SM (D.N.H. 2011).3
Once in federal court, McCarthy amended her complaint
again, adding several claims. WPB then moved to dismiss the
complaint. While that motion was pending, McCarthy notified the
court that she had filed for bankruptcy relief under Chapter 13
in the bankruptcy court for the District of New Hampshire. See
McCarthy I, doc. nos. 27 & 28; In re Mary Hersey McCarthy, 11-
13342-JMD (Bankr. N.H. Apr. 6, 2012). Although WPB’s
counterclaim was initially stayed under 11 U.S.C. § 362, the
bankruptcy court lifted that stay to the extent necessary to
resolve the issues in McCarthy I, including determining the
validity of WPB’s mortgage. In re McCarthy, doc. no. 93 at 1.
The court in McCarthy I also permitted McCarthy to continue
prosecuting her claims against WPB after the bankruptcy trustee
abandoned those claims on behalf of the bankruptcy estate. See
McCarthy I, endorsed order, Jan. 4, 2013.
3 Although the case was previously removed to federal court,
it was remanded before either party made any substantive
filings. For that reason, the court will refer to Hersey v. WPB
Partners, LLC, 11-cv-207-SM as “McCarthy I.”
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In January 2013, WPB moved to dismiss all of McCarthy’s
claims, and McCarthy objected. The court granted WPB’s motion
to dismiss, in part, paring the claims remaining in the case to
McCarthy’s usury claim and WPB’s breach of contract claim on the
note.
WPB then filed separate motions for summary judgment on
each of the remaining claims. On February 11, 2014, the court
issued an order granting both motions. With respect to the
damages due on WPB’s counterclaim, the court explained that
“[f]ollowing a discussion with respect to the existence of any
material dispute related to calculating the liquidated damages
amount, the parties agreed that the amount of $443,443.03, as of
September 6, 2011 (a date contemporaneous with the filing of the
bankruptcy petition) would be appropriate.” Doc. no. 64 at 4.4
The court then entered judgment in favor of WPB on its
counterclaim for breach of contract and liquidated damages.
McCarthy I, doc. no. 65. McCarthy appealed, and the First
Circuit Court of Appeals affirmed the judgment on February 12,
2015.
4 Although the court stated in the body of the summary
judgment order that the liquidated damages were $443,433.03, in
the conclusion the court awarded $433,433.03. Judgment entered
for $433,433.03. Neither party moved to correct the amount in
the judgment, and both parties use the $433,433.03 amount stated
in the judgment.
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II. Permission to Foreclose
WPB filed the summary judgment order in the bankruptcy
court, forwarding a copy of the filing to McCarthy’s counsel.
See In re McCarthy, doc. no. 177. WPB then moved in the
bankruptcy court for relief from 11 U.S.C. § 362(d)’s automatic
stay to allow it to foreclose on the property. In support, WPB
asserted that McCarthy owed it $576,664.46 under the note, an
amount which included the judgment in McCarthy I and the
interest and costs that had accrued since September 6, 2011. In
response, McCarthy argued that foreclosure was inappropriate
because she had enough equity in the property to adequately
protect WPB’s interest.
The bankruptcy court held a hearing on WPB’s motion to
foreclose. During that hearing, the parties presented evidence
concerning the value of WPB's claim and the value of the
property. In re McCarthy, doc. no. 244, at 3. WPB presented
evidence showing that its secured claim now totaled $672,079.24,
including interest, attorneys' fees, and costs. Id. McCarthy
did not present any evidence contesting these claims. Id. As
for the value of the property, each side elicited expert
testimony from an appraiser. Id. WPB’s appraiser testified,
consistent with his appraisal, that the fair market value of the
property was $535,000. Id. at 4. On the other hand, McCarthy's
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appraiser testified, consistent with her appraisal, that the
value of the property was $900,000. Id. at 5.
The bankruptcy court granted WPB's motion for relief from
the automatic stay, concluding that McCarthy had a less than 5%
equity cushion in the property and that, as a result, WPB's
secured claim against McCarthy was not adequately protected.
Id. at 8. In doing so, the court concluded that WPB possessed a
claim on McCarthy’s estate for $672,079.24, a figure which
included the judgment in McCarthy I plus other interest,
attorneys’ fees, and costs. Id. at 3. The court accepted WPB’s
testimony concerning the claim because “[t]he debtor presented
no evidence to the contrary.” Id.
The court also concluded that the fair market value of the
property was $705,000. Id. at 8. The court's analysis into
fair market value evaluated both appraisals, taking into
consideration their respective strengths and weaknesses, as
revealed by the direct and cross examination of the parties.
Id. at 6-8. Based on the bankruptcy court’s order, WPB
initiated foreclosure proceedings on the property.
III. The Auction
WPB scheduled the foreclosure sale for March 20, 2016. It
hired James R. St. Jean, a licensed auctioneer to conduct the
auction. To market the auction, WPB published the legal notice
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of the sale in the New Hampshire Union Leader for three
consecutive weeks. See R.S.A. 479:25, I. In addition to
publishing the notice, WPB (or its agents) placed ads in the
Boston Herald, the Manchester Union Leader, the New Hampshire
Sunday News, the Laconia Citizen, and the Concord Monitor.
Further, the sale was advertised on St. Jean’s website and
details of the sale were emailed “to over 7,500 individuals on
[St. Jean's] email list who ha[d] expressed interest in similar
properties.” Doc. no. 18-3 at 3. Signs were also displayed
near the property advertising the auction.
The sale was held on the property. On the day of the sale,
the weather was overcast without precipitation and there was
snow on the ground. Access to the property was through Lang
Pond Road and Piper Road. At least a portion of Lang Pond Road
was not plowed on the date of the auction sale. Doc. no. 18-3
at 3 (noting that signs were placed “at the end of the plowed
section of Lang Pond Road”). Nine people attended the auction,
including St. Jean, two of his employees, and two WPB
representatives.
Before the auction, WPB determined that it would not allow
the property to be sold to a third-party for less than $500,000,
which was about 70% of what the bankruptcy court determined was
the property’s fair market value. WPB believed that this price
was commercially reasonable. During the auction, participants
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placed several bids on the property, none of which exceeded
$150,000. WPB then bid its $500,000 minimum price, and no
further bids were received. Consequently, WPB purchased the
property through an affiliate for $500,000.
IV. Post-Judgment Litigation
On April 3, 2015, the bankruptcy court dismissed the
bankruptcy action. In May 2015, WPB moved in McCarthy I for a
post-judgment attachment on all of McCarthy’s property that
would be liable for execution to secure the judgment it had been
awarded in that case. In support, WPB explained that despite
its sale of the property for $500,000, McCarthy still owed it a
deficiency of over $250,000. The calculation of that debt
included interest, costs, attorneys’ fees, and expenses that had
accrued after September 6, 2011, the date through which
liquidated damages were calculated in the judgment. The court
denied WPB’s motion for an attachment and concluded that the
liquidated damages it had awarded were for all damages arising
out of McCarthy’s breach of the note. The court reasoned that:
To the extent defendant may be suggesting that it was entitled
to entry of judgment in the amount of $443,443.03 as of
September 6, 2011, it is entirely incorrect. That was the
amount due upon filing of the bankruptcy petition, and the
amount defendant's counsel specifically agreed to accept as the
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judgment amount in lieu of proving up damages at the time
summary judgment was entered. McCarthy I, doc. no. 91 at 1.
WPB did not seek clarification of the decision or appeal.
V. History of this action
On January 12, 2016, McCarthy brought suit against WPB in
state court, alleging eight claims that challenged the
foreclosure sale, including a breach of contract claim based on
the mortgage that sought to recover the difference between the
judgment amount of $433,433.03 in McCarthy I and the sale price
of the property, $500,000.00. WPB removed the case to this
court, and moved to dismiss five of McCarthy's eight claims.
The court granted the motion, dismissing McCarthy's claims for
violation of RSA 358-C, violation of RSA 358-A, violation of the
Fair Debt Collection Practices Act, negligent misrepresentation,
and enhanced compensatory damages (Counts IV through VIII). WPB
then filed its answer and asserted two counterclaims for breach
of contract based on the note and mortgage, seeking interest,
costs, and fees in Counterclaim I and foreclosure costs, real
estate taxes, and attorneys' fees in Counterclaim II.
McCarthy moved for summary judgment on her claim for breach
of contract and WPB’s two counterclaims for breach of contract.
The central question in resolving those claims was whether the
judgment in McCarthy I precluded WPB from collecting additional
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damages under the note or mortgage. The court granted
McCarthy’s motion, concluding that WPB was precluded from
seeking additional damages under the note because “the court [in
McCarthy I] . . . made it clear that in denying the motion for
a post-judgement attachment the liquidated damages awarded in
the judgment included all damages WPB could seek for breach of
the note.” Id. at 14-15. The court also concluded that the
“liquidated damages award in McCarthy I . . . included all of
the additional damages WPB claims . . . for breach of the
mortgage.” Id. at 18-19. Accordingly, the court dismissed
WPB’s counterclaims and awarded McCarthy damages in the amount
of the difference between the foreclosure sale price and the
McCarthy I judgment. Id. at 20.
Following the court’s order on McCarthy’s summary judgment
motion, the claims remaining in the case are McCarthy’s claims
for breach of the duty of due diligence (Count II) and breach of
the duty of good faith (Count III).
DISCUSSION
WPB now moves for summary judgment on McCarthy’s claims for
breach of the duty of due diligence and breach of the duty of
good faith. McCarthy objects, arguing that she has presented
evidence demonstrating that a genuine issue of material fact
exists as to both claims.
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“[A] mortgagee executing a power of sale,” like WPB here,
“is bound both by the statutory procedural requirements and by a
duty to protect the interests of the mortgagor through the
exercise of good faith and due diligence.” Murphy v. Fin. Dev.
Corp., 126 N.H. 536, 540 (1985). These duties are “essentially
that of a fiduciary.” Id. at 541. Finally, “the duties of good
faith and due diligence are distinct [and] . . . any inquiry as
to their breach calls for a separate consideration of each.”
Id. at 542-43 (quoting Wheeler v. Slocinski, 82 N.H. 211, 213
(1926)).
I. Duty of Due Diligence (Count II)
McCarthy contends that she has adduced enough evidence to
create a genuine issue of material fact on her diligence claim.
In support, McCarthy points to the testimony of her expert,
Henry S. Maxfield, who criticized WPB’s handling of the
foreclosure sale because, among other reasons, Lang Pond Road
and Piper Road, the two roads to the property, were closed to
vehicle traffic until April. Maxfield further testified that
Lang Pond Road was open to snowmobile traffic at the time of the
auction. McCarthy also relies on the evidence in the record
demonstrating that the fair market value of the property was
more than the foreclosure sale price. In response, WPB contends
that Maxfield’s testimony is not material to the diligence
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inquiry and that McCarthy’s evidence of fair market value is not
the same as evidence of fair price at the foreclosure sale.
A mortgagee exercising a power of sale “must exert every
reasonable effort to obtain ‘a fair and reasonable price under
the circumstances,' even to the extent, if necessary, of
adjourning the sale or of establishing an upset price below
which he will not accept any offer.” Murphy v. Fin. Dev. Corp.,
126 N.H. 536, 541 (1985) (internal quotation marks omitted).
“The issue of the lack of due diligence is whether a reasonable
man in the lender's place would have adjourned the sale or taken
other measures to receive a fair price.” Id. at 542 (internal
citation omitted). The test for a fair price is whether the
mortgagee obtained “a fair and reasonable price under the
circumstances in which [it] acts.” Reconstruction Fin. Corp. v.
Faulkner, 101 N.H. 352, 361 (1958). “What constitutes a fair
price, or whether the mortgagee must establish an upset price,
adjourn the sale, or make other reasonable efforts to assure a
fair price, depends on the circumstances of each case.” Murphy,
126 N.H. at 541; see also Carrols Equities Corp. v. Jacova, 126
N.H. 116, 119 (1981). “The mortgagor has the burden of proving
a lack of due diligence.” Carrols, 126 N.H. at 118.
In Murphy, 126 N.H. at 542-43, the New Hampshire Supreme
Court concluded that the foreclosing mortgagee violated its duty
of due diligence when it purchased the plaintiffs’ property at a
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foreclosure sale for a price that satisfied the debt owed to it
but failed to return any of the plaintiff’s equity. In doing
so, the court concluded that the mortgagee’s advance knowledge
of appraisal evidence showing that the fair market value of the
property was significantly more than the debt the plaintiffs
owed was, among other things, a basis for concluding that the
mortgagee had failed to take reasonable steps to obtain a fair
price. Id. Moreover, although fair market value and fair price
at a foreclosure sale are different concepts, see Murphy, 126
N.H. at 545-46, the New Hampshire Supreme Court has made it
clear that evidence of fair market value is a relevant factor in
evaluating fair price at a foreclosure sale. First NH Mortg.
Corp. v. Greene, 139 N.H. 321, 325 (1995) (trial court’s finding
of violation of due diligence was supported by its determination
that “purchase price was clearly inadequate,” which in turn was
“supported by the appraisal evidence admitted at trial”); Silver
v. First Nat'l Bank, 108 N.H. 390, 392-393 (1967) (finding that
appraisal valuation was evidence of what “the property would
have brought at a reasonably adjourned sale”).
Here, McCarthy points to the appraisal that she submitted
to the bankruptcy court, which concluded that the property had a
fair market value of $900,000, and the bankruptcy court’s order
finding that the fair market value of the property was $705,000.
As in Murphy, those valuations suggest that McCarthy had a
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significant equity stake in the property that WPB failed to
recover in the foreclosure sale.
In addition, McCarthy has presented testimony from its
expert challenging the reasonability of holding the sale when
road access to the property was limited.5 As WPB points out,
“[a] fair price is “‘the price obtainable on a fair sale
reasonably adjourned rather than the price obtainable when the
season for selling was most favorable.'” GEM Realty Trust v.
First Nat'l Bank, 1995 WL 127825, at *4 (D.N.H. Mar. 20, 1995)
(quoting Silver v. First Nat'l Bank, 108 N.H. 390, 392 (1967));
Wheeler, 82 N.H. at 215. Although not clearly presented,
McCarthy’s argument about road access appears to be about more
than just the undesirability of marketing the property during
the winter season. Rather, McCarthy appears to also argue that
the road closures limited potential bidders’ access to the
5 The court observes that while WPB has made several
persuasive arguments concerning the materiality of portions of
Maxfield’s proposed testimony, it did not object to the
admission of Maxfield’s deposition testimony in the context of
its motion for summary judgment. WPB has, however, moved
separately to exclude Maxfield’s testimony under Federal Rule of
Evidence 702, arguing that Maxfield is not qualified as an
expert and that his opinion is neither relevant nor reliable.
See doc. no. 34. The court will reserve any ruling on the
admissibility of Maxfield’s testimony for when it resolves WPB’s
motion to exclude.
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auction site. See doc. no. 14 (alleging that “any bidders had
to drive on a closed public road . . . before traversing
another 1,000 feet in the snow”). Based on the evidence of
limited road access, a factfinder could conclude that WPB did
not undertake all reasonable efforts to ensure that prospective
bidders could attend the foreclosure sale or that a reasonable
adjournment was warranted under the circumstances.
Therefore, WPB’s motion for summary judgment is denied as
to McCarthy’s claim for violation of the duty of due diligence.
II. Duty of Good Faith
McCarthy asserts that WPB violated its duty of good faith
because it misrepresented the amount of its McCarthy I judgment
to the bankruptcy court to obtain permission to foreclose, its
conduct during the foreclosure sale was done in bad faith, and
the price of the sale was unconscionable. In response, WPB
argues that the statements it made in the bankruptcy court were
not misrepresentations and are protected under the litigation
privilege. Further, WPB argues that it did not conduct the
foreclosure sale in bad faith and that the purchase price for
the property was not unconscionable.
In order “to constitute bad faith there must be an
intentional disregard of duty or a purpose to injure.” Murphy,
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126 N.H. at 542-43. Further, “[i]nadequacy of price alone is
not sufficient to demonstrate bad faith unless the price is so
low as to shock the judicial conscience.” Id. at 541.
A. Statements to Bankruptcy Court
McCarthy asserts that WPB acted in bad faith when it
represented to the bankruptcy court in its motion for relief
from the automatic stay that she owed damages beyond the
judgment amount in McCarthy I. In response, WPB argues that its
statements were not misrepresentations and that the statements
it made in the bankruptcy court are exempt from liability under
New Hampshire law.
Under New Hampshire law, “certain communications are
absolutely privileged and therefore immune from civil suit.”
Provencher v. Buzzell–Plourde Associates, 142 N.H. 848, 853
(1998) (quoting Pickering v. Frank, 123 N.H. 326, 328 (1983)).
“Statements made in the course of judicial proceedings
constitute one class of communications that is privileged from
liability in civil actions if the statements are pertinent or
relevant to the proceedings.” Id. “[T]he policy of granting
absolute immunity for such statements ‘reflects a determination
that the potential harm to an individual is far outweighed by
the need to encourage participants in litigation, parties,
attorneys, and witnesses, to speak freely in the course of
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judicial proceedings.’” Pickering, 123 N.H. at 329 (quoting
McGranahan v. Dahar, 119 N.H. 758, 763 (1979)). Based on this
policy, the First Circuit has concluded that the New Hampshire
Supreme Court would view the privilege as “extend[ing] to any
civil claim arising from statements made in the course of a
judicial proceeding.” Hugel v. Milberg, Weiss, Bershad, Hynes &
Lerach, LLP, 175 F.3d 14, 17 (1st Cir. 1999); see also
Provencher, 142 N.H. at 856 (applying privilege to bar
negligence, negligent misrepresentation, and fraud claims).
Here, there is no dispute that the statement at issue
occurred in a judicial proceeding and that the statement was
relevant to that proceeding. Nevertheless, McCarthy contends
that the privilege should not apply based on the circumstances
of this case. In support of this proposition, she cites
language in Dahar, 119 N.H. 758, in which the New Hampshire
Supreme Court observed that because the absolute privilege is
tantamount to immunity it “must be reserved for those situations
where the public interest is so vital and apparent that it
mandates complete freedom of expression without inquiry into a
defendant’s motives.” Id. at 762. But as the Dahar court
concluded in the very paragraph on which McCarthy relies,
“judicial proceedings constitute one such situation” in which
the absolute privilege is warranted. Id. Further, McCarthy has
not presented a persuasive argument as to why the privilege
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should not apply in this case. Therefore, because there is no
dispute that the statements at issue occurred during a judicial
proceeding and were relevant to that proceeding, they are
absolutely privileged from civil liability under New Hampshire
law.
B. Foreclosure Conduct as Evidence of Bad Faith
McCarthy also contends that WPB’s conduct at the
foreclosure sale is evidence of bad faith. In support, McCarthy
asserts that “[g]iven the evidence discussed above [concerning
WPB's diligence] as to the manner in which the Defendant
marketed and conducted the foreclosure auction so as to
discourage competitive bidders and its knowledge of the
significantly higher value of the Property than what it accepted
at foreclosure, there are genuine issues of material fact
whether the foreclosure price was so low as to shock the
judicial conscience.” Doc. no. 29-1 at 6. In response, WPB
contends that the price paid at the foreclosure sale does not
shock the conscience.
To create a genuine issue of material fact on her claim for
violation of the duty of good faith, McCarthy must point to some
evidence demonstrating that WPB conducted the foreclosure with
an intent to injure or harm her. In Murphy, 126 N.H. at 542,
the New Hampshire Supreme Court reversed a master’s finding that
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the defendant lender had violated the duty of good faith. As
this court observed in People's United Bank v. Mountain Home
Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 169 (D.N.H.
2012), in doing so, the Murphy court set a high threshold for
the type of conduct that qualifies as a violation of the duty of
good faith:
In Murphy, the mortgagees: (1) provided minimal public
notice of the foreclosure sale, which had been
postponed from an earlier date, see id. at 543; (2)
purchased the property themselves at a sale with no
other bidders present, see id. at 539; (3) bought the
property for an amount equal to the amount owed by the
mortgagors, $27,000, see id.; (4) should have realized
that the mortgagors' “equity in the property was at
least $19,000,” id. at 542; and (5) sold the property
for $38,000 two days after purchasing it for $27,000,
see id. at 539. Despite all that, the court ruled that
“[t]here [was] insufficient evidence in the record to
support the master's finding that the [mortgagees]
acted in bad faith in failing to obtain a fair price
for the [mortgagors'] property.” Id. at 542.
People's United, 858 F. Supp. 2d at 169.
Here, nothing in the summary judgment record rises to the
level of harmful or injurious conduct that the New Hampshire
Supreme Court rejected in Murphy as a valid basis for a
violation of the duty of good faith. WPB provided more than
minimal notice and purchased the property at an amount higher
than McCarthy’s debt. Further, other bidders were present and
participated in the foreclosure auction. Finally, there is no
evidence that WPB had reason to know that it stood to profit on
a quick turnaround sale or that it completed such a sale.
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Therefore, McCarthy has failed to point to sufficient evidence
from which a factfinder could conclude that WPB’s conduct
violated the duty of good faith.
McCarthy also contends that the foreclosure sale price was
so low that it shocked the judicial conscience. In support,
McCarthy points to the disparity between the fair market value
of the property and the price received at the foreclosure sale.
The summary judgment record contains three reference points for
the property’s fair market value: WPB’s appraisal valuing the
property at $535,000; the bankruptcy court’s order valuing the
property at $705,000; and McCarthy’s appraisal valuing the
property at $900,000. The foreclosure sale price is 93% of
WPB’s valuation, 71% of the bankruptcy court’s fair market value
finding, and 55% percent of McCarthy’s valuation.
As a matter of law, that price disparity does not support a
finding that the foreclosing mortgagee violated its duty of good
faith. See Resolution Trust Corp. v. Carr, 13 F.3d 425, 430
(1st Cir. 1993) (applying Massachusetts law) (noting that courts
have granted dispositive pretrial motions on foreclosure claims
with foreclosure prices as low as 39% of market value); Peter v.
Wells Fargo Home Mortgage, Inc., No. 01-C-664, 2012 WL 9492844,
at *1 (N.H. Super. July 30, 2012) (relying on Carr and finding
that foreclosure sale at 85% of market value did not shock
judicial conscience as a matter of law); see also Olbres, 142
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N.H. at 234 (affirming trial court’s finding that foreclosure
price that was 42% of pre-foreclosure appraisal did not violate
duty of good faith). In short, the price that WPB paid for the
property at the foreclosure sale is not so low as to shock the
judicial conscience.
Accordingly, the court concludes that WPB is entitled to
summary judgment on McCarthy’s claim for a violation of the duty
of good faith.
CONCLUSION
For the foregoing reasons, WPB’s motion for summary
judgment (doc. no. 25) is granted as to McCarthy’s claim for
violation of the duty of good faith and is otherwise denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 16, 2017
cc: Mark A. Darling, Esq
James E. Higgins, Esq.
Paul B. Kleimann, Esq.
Sabin R. Maxwell, Esq.
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