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The Cadle Company v. Dizehchi

Supreme Court of New Hampshire

August 1, 2008

The Cadle Company
v.
Parviz Dizehchi

UNPUBLISHED OPINION

The defendant, Parviz Dizehchi, appeals an order of the superior court granting the plaintiff, The Cadle Company, summary judgment on its claim seeking amounts due under a promissory note. We reverse and remand.

In deciding a motion for summary judgment, the trial court "is required to construe the pleadings, discovery and affidavits in the light most favorable to the non-moving party to determine whether the proponent has established the absence of a dispute over any material fact and the right to judgment as a matter of law." Buchholz v. Waterville Estates Assoc., 156 N.H. 172, 173 (2007) (quotation omitted). "An issue of fact is material if it affects the outcome of the litigation." Id. (quotation omitted). In reviewing the trial court's order, we consider the affidavits and other evidence submitted by the parties in the light most favorable to the non-moving party. See id.

The summary judgment record reflects that the defendant executed a promissory note for $40, 000 dated September 30, 1988, in favor of Seabrook Bank & Trust Company (Seabrook). The note was secured by a mortgage on real property, and was to be paid in full on or before October 1, 1991. The plaintiff filed the present action by writ of summons dated June 15, 2006, seeking amounts due under the note. The defendant filed a brief statement of defenses asserting the statute of limitations, laches, waiver, accord and satisfaction, and that he "recalls giving the Plaintiff's predecessor in title a Deed in Lieu of Foreclosure."

The plaintiff moved for summary judgment, submitting an affidavit from one of its officers asserting that the note had been assigned to it, that the current amount due under the note was $76, 005.20, and that "[t]here are no valid setoffs or counterclaims to this claim nor valid defense to this action." The defendant objected, and submitted an affidavit in which he asserted:

I specifically recall prior to the takeover by the new bank that I negotiated with an account officer at Seabrook Bank & Trust Company to give a deed in lieu of foreclosure as full and final settlement of my obligation to the bank. I do not know why this deed in lieu of foreclosure was not recorded at the Strafford County Registry Deeds, but I do know that I did sign this property over to them. I have since thrown out all of my payment documentation concerning this loan as this lawsuit was not brought for eighteen (18) years.

The trial court granted the motion, ruling that "[t]he representation by the defendant that he recalls that he gave a deed in lieu of foreclosure, without more specific facts, does not show that there is a genuine issue for trial." With respect to the statute of limitations and laches defenses, the trial court concluded that because the note was secured by a mortgage, it was governed by the twenty-year statute of limitations in RSA 508:6 (1997). See Premier Capital v. Skaltsis, 155 N.H. 110, 112-15 (2007).

The defendant moved to reconsider, arguing that RSA 508:6 did not apply because the mortgage had been discharged in 1998, see id. at 115, and submitted in support of the motion an express discharge of the mortgage recorded at the Strafford County Registry of Deeds. The trial court denied the motion, declining to consider the discharge because the defendant had not shown why he could not have submitted it earlier. This appeal followed.

Upon this record, we agree with the defendant that he adequately established an issue of material fact regarding his accord and satisfaction defense. Accord and satisfaction is a valid defense to the enforcement of a promissory note. See DeCato Brothers, Inc. v. Westinghouse Credit Corp., 129 N.H. 504, 506-07 (1987). The defendant's affidavit, construed in the light most favorable to him, establishes that: (1) he negotiated with Seabrook regarding his obligations under the note when Seabrook had the right to enforce it; (2) Seabrook agreed to accept title in full and final settlement of the defendant's obligations under the note; and (3) pursuant to the agreement, the defendant, in fact, deeded the property to Seabrook. These facts, if true, would establish an accord and satisfaction. See id.; Corey Steeplejacks Co. v. Cray, 106 N.H. 126, 129-30 (1965) (under New Hampshire law, accord and satisfaction turns simply upon whether the lesser sum was accepted as satisfaction in full).

We reject the plaintiff's argument that the defendant's affidavit was insufficient because he did not submit "copies of any documents, letters or other memoranda of any type memorializing this purported agreement nor the affidavit of any corroborating witness." While a party opposing summary judgment "may not rest upon mere allegations or denials of his pleadings, " Buchholz, 156 N.H. at 176 (quotation and ellipsis omitted), the defendant here did not rely upon his pleadings, but submitted an affidavit asserting specific facts that, if true, would establish an accord and satisfaction. The plaintiff does not argue that the defendant's testimony of such facts would otherwise be inadmissible. The lack of corroborating proof, therefore, goes to the weight of the affidavit, an issue beyond the trial court's consideration on summary judgment. See Iannelli v. Burger King Corp., 145 N.H. 190, 193 (2000).

Because the trial court erred by concluding that there was an absence of a genuine issue of material fact, we reverse the trial court's order, and need not address the parties' remaining arguments, including the impact of the 1998 discharge upon the statute of limitations. The parties are free to revisit such issues upon remand.

Reversed and remanded.

DALIANIS, GALWAY and HICKS, JJ., ...


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