
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  Ann  S.  DuRoss and  Colleen B.            _____________________              _______________      __________        Bombardier were on brief for appellee.        __________                                 ____________________                                     June 6, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.  This appeal concerns                      BOWNES, Senior Circuit Judge.                              ____________________            federal banking  law and  the scope of  the federal  estoppel            doctrine  established  by  the  Supreme  Court's  decision in            D'Oench, Duhme &  Co. v. FDIC,  315 U.S. 447  (1942), and  12            _____________________________            U.S.C.     1823(e).   Defendant-appellant  Donald  L. LeBlanc            seeks  review  of the  district  court's  order granting  the            FDIC's motion for  summary judgment.  The district court held            that  the  defenses  and  counterclaims   LeBlanc  raised  in            response  to  the  FDIC's  affirmative suit  to  recover  the            deficiency  owed  on  a mortgage  note  he  and his  company,            LeBlanc  Associates,  (collectively  "LeBlanc")  executed  on            January 5,  1989, were barred  by both Massachusetts  law and            the  D'Oench doctrine.    We  affirm  this decision,  but  on                 _______            slightly  different grounds  than  those  articulated by  the            district   court.     Title   28  U.S.C.      1291   provides            jurisdiction.                                                    I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      For the purpose of  reviewing the district  court's            grant  of summary  judgment, we  summarize  the facts  in the            light most favorable to the nonmoving party.  Levy v. FDIC, 7                                                          ____________            F.3d 1054, 1056 (1st Cir. 1993).  In 1987, appellant acquired            the 54-acre parcel at issue in this case.   The parcel, which            is located in Falmouth,  Massachusetts, and abuts a 900-acre,            partially-completed,  residential  community called  Falmouth                                         -2-                                          2            Woods, is accessible by  only one road, Falmouth  Woods Road.            Though appellant purchased the parcel without first obtaining            a  right  of way  over Falmouth  Woods  Road, his  intent was            ultimately  to acquire  such an easement  and to  develop his            parcel   into  a  six-lot,   multifamily  subdivision  called            Prospect Hills.  At the time LeBlanc purchased  the property,            both the Falmouth Woods  development and Falmouth Woods Road,            which  fronts  the LeBlanc  parcel's  western  boundary, were            owned by the Falmouth Woods Development Corporation ("FWDC"),            a Massachusetts corporation.                      On January  5, 1989, to finance  development of the            Prospect Hills  parcel, LeBlanc  obtained a $750,000.00  loan            from  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  secured  by  a            personal guaranty note executed by LeBlanc and  a mortgage on            the 54-acre parcel.   Payment on the note  was to be monthly,            beginning in February  of 1989, with  the provision that  the            principal balance, plus accrued  and unpaid interest, were to            be paid by January 4, 1992.                           LeBlanc  obtained  approval and  a  permit  for the            Prospect  Hills subdivision from  the Falmouth Planning Board            and, in  the Fall of 1989, began meeting with FWDC to discuss            securing  access rights  over  Falmouth Woods  Road.   During                                         -3-                                          3            negotiations,  FWDC  verbally  agreed  to  grant  LeBlanc  an            easement for utilities and right of way across Falmouth Woods            Road.   A written agreement regarding  the easement, however,            was never prepared.  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  prior to            extending LeBlanc the loan to develop Prospect  Hills and, as            a  result, held  a mortgage  in the Falmouth  Woods property,            sought and obtained relief from the  automatic stay placed on            FWDC's  estate as  a result  of the  bankruptcy filing.   BNE            operated  the  Falmouth  Woods  property as  a  mortgagee  in            possession, briefly continuing service  at the Falmouth Woods            golf  course, and  tried to  sell Falmouth  Woods subdivision            lots.   It eventually  foreclosed  its mortgage and purchased            the  property at  the subsequent  foreclosure sale.   Because            FWDC's mortgage did not include the fee  interest in Falmouth            Woods Road, the foreclosure sale purchase left BNE with title            to Falmouth Woods and  an easement over Falmouth  Woods Road.            The fee  interest in  the road remained  with the  bankruptcy            trustee assigned to manage FWDC's assets.                      The Falmouth Woods  property changed hands  several            times  after  BNE's   foreclosure-sale  purchase,   thwarting            LeBlanc's efforts  to obtain an easement  over Falmouth Woods            Road.  In  September 1990, BNE transferred the Falmouth Woods                                         -4-                                          4            property   to  its  wholly-owned  subsidiary,  Falmouth  Land            Company ("FLC").   In  January 1991, the  Comptroller of  the            Currency of the United States of America ("COC") declared BNE            insolvent  and appointed the FDIC  receiver of BNE.   The COC            also chartered  the New Bank  of New England,  N.A. ("NBNE"),            pursuant to 12 U.S.C.   1821(n), as  a bridge bank to acquire            the assets formerly held  by BNE.   Thus, NBNE held title  to            the FWDC property, as well as LeBlanc's  $750,000.00 note and            guaranty from January to July of 1991.                        On  July  13,  1991,  the COC  dissolved  NBNE  and            appointed  the FDIC as receiver  of the bank,  pursuant to 12            U.S.C.   1821(n)(12).  The  FDIC then acquired Falmouth Woods            and  assumed the note and the mortgage on the LeBlanc parcel.            On August 13,  1991, the FDIC took title to  the fee interest            in  Falmouth  Woods  Road  in  the  name  of  FLC,  the  NBNE            subsidiary.  NBNE  had purchased the fee interest in Falmouth            Woods Road from the FWDC's bankruptcy trustee in May 1991.                        LeBlanc pursued his  easement request with  each of            Falmouth Woods's  owners because  the Prospect Hills  parcel,            initially appraised at $1,980,000.00, was virtually worthless            without  access to  Falmouth Woods  Road.   Negotiations with            BNE,  FLC, and Oak Tree Capitol ("Oak Tree"), a company which            functioned  as  asset manager  for  both  FLC and  BNE,  were            unsuccessful.   Attempts to obtain  a right of  way from NBNE            and the  FDIC were also unsuccessful,  primarily because both                                         -5-                                          5            entities   engaged   in  actions   which   blocked  LeBlanc's            acquisition efforts.    NBNE contested  LeBlanc's efforts  to            resolve his road access problems through direct  negotiations            with   the  FWDC   bankruptcy  trustee  and   was  ultimately            successful  in outbidding  LeBlanc  for the  fee interest  in            Falmouth Woods  Road.   According to LeBlanc,  NBNE officials            also  misrepresented the  fact that  they were  marketing the            Falmouth  Woods  property without  reservation  of  rights or            notice  of  claims.     LeBlanc  further  asserts  that  NBNE            attempted to accelerate payment  on his note by  declining to            honor a  loan commitment made to  another LeBlanc development            entity, DDM  Development Corporation  ("DDM"), and making  an            easement across Falmouth Woods Road contingent upon increased            collateralization of  the note  or a reduction  in principal.            LeBlanc  imputes a  similar  bad intent  to  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.  Then, in  a November 13,            1991,  letter, LeBlanc informed the FDIC, which held title to            Falmouth Woods and Falmouth Woods Road at that time, that its            refusal  to convey  the  requested easement  entitled him  to            discontinue  payments on  the  $750,000.00 note  and that  he            would  not  resume payments  until  the  easement matter  was            resolved.  On  November 21, 1991, the FDIC made  a demand for                                         -6-                                          6            full payment of the  outstanding note balance.   When LeBlanc            failed  to make the requested payment, the FDIC, on August 7,            1992,  foreclosed and  sold the  Prospect Hills  property for            $235,000.00 at  auction.   Appellant's son, Mark  LeBlanc, as            Trustee  of   the  McAuliffe  Nominee  Trust,  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  21, 1992,            LeBlanc  filed  an  answer   and  three  count  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  and fair dealing implicit  in            all contracts made under  Massachusetts law.  See Mass.  Gen.                                                          ___            L.  ch. 106    1-203 (1990).   Count  II alleged  a breach of            contract under Mass. Gen.  L. ch. 106   9-106,  which governs            secured transactions.   Count III  raised claims in  tort for            intentional infliction of emotional distress.                      On  February 17, 1993,  before a  magistrate judge,            the FDIC  moved for judgment  on the  pleadings, pursuant  to            Fed. R. Civ. P.  12(c), and argued that the  federal estoppel                                         -7-                                          7            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  LeBlanc  from asserting  his defenses  and            three  counterclaims.  LeBlanc contended that neither section            1823(e)  nor  the common  law  D'Oench  doctrine it  codifies                                           _______            preempted  his  counterclaims.   He  maintained  that,  under            Massachusetts  common law  and  the  Uniform Commercial  Code            ("UCC"), the duties allegedly breached by the  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  . . . in [his]  attempt to            acquire  a right  of  way over  the  road."   It,  therefore,            dismissed  those   allegations  in   counts  I  and   III  of            appellant's  counterclaim which  relied  on  that  agreement,            holding  that  all other  allegations,  taken  as true,  were            legally sufficient to survive Rule 12(c).                      The  magistrate  judge  ruled  that   count  II  of            appellant's counterclaim,  which was  based on Mass.  Gen. L.            ch. 106    9-507  and focused  on the FDIC's  conduct at  the            August  1991  foreclosure auction,  survived  the Rule  12(c)                                         -8-                                          8            motion  because,  unlike  counts  I  and III,  it  was  based            exclusively on state law.   She did not, however,  attempt to            resolve  that   claim  because  she   found  the  information            available  to  her  insufficient  to  decide  the  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  13, 1993,  the district court  issued an            order  accepting  the  Report   and  Recommendation  of   the            magistrate  judge,  with  two modifications.    It  dismissed            LeBlanc's  counterclaims against  the FDIC  in its  corporate            capacity  and reserved  the  issue of  which party  bears the            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  27, 1994, the district  court issued an            order  allowing   summary  judgment  for  the   FDIC  on  its            affirmative  claim for  the deficiency  due on  the note  and            post-judgment interest.   The district court  agreed with the            magistrate  judge's determination  that the  federal estoppel            doctrine barred  much of LeBlanc's answer  and concluded that            "LeBlanc  has  presented no  defense  that  would excuse  his                                         -9-                                          9            default."  The court also granted the FDIC's summary judgment            motion with respect to appellant's  three-count counterclaim.            It   reaffirmed  the   magistrate  judge's   conclusion  that            appellant's counterclaims were barred to the extent that they            were  based on  a  side agreement  or  affirmative duty  and,            consequently,  only considered  the  state  law issues  which            survived the magistrate judge's order.                        Without  deciding  whether   D'Oench  and   section                                                   _______            1823(e) permit  claims based on terms implied in an agreement            as  a matter  of  state law,  the  district court  held  that            appellant's allegations,  even if true, did  not constitute a            breach  of  the  implied  covenant of  good  faith  and  fair            dealing.   Noting  that Massachusetts law  does not  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  also held that LeBlanc's  claim that the            FDIC failed  to handle  its secured collateral,  the Prospect            Hills parcel, in accordance with  Mass. Gen. L. ch. 106    9-            507, could  not stand  because that  statute does  not govern            secured  transactions  where the  security is  real property.            Finally,  the  district  court  granted  summary judgment  on            appellant's  intentional  infliction  of  emotional  distress            counterclaim.   It concluded that  the FDIC's actions did not                                         -10-                                          10            amount to extreme and  outrageous behavior within the meaning            of Massachusetts  tort law,  though it acknowledged  that the            FDIC's actions in attempting to trade an easement in Falmouth            Woods   Road  "may  [have]  constitute[d]  rather  hard-nosed            business."   The court entered  its judgment on  May 8, 1995,            and this appeal followed.                                         III.                                         III.                                      DISCUSSION                                      DISCUSSION                                      __________                      We review  the  district court's  grant of  summary            judgment de  novo, EEOC v.  Green, 76 F.3d  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  (1992); see also Fed. R.  Civ. P.            _____ ______                        ___ ____            56(c).    We   do  not  consider  the   issues  presented  by            appellant's intentional infliction  of emotional distress and            Mass.  Gen. L.  ch. 106,    9-507  counterclaims.   Appellant            failed  to  heed  our  oft-articulated  warning  that "issues            averted  to in  a perfunctory  manner, unaccompanied  by some            effort at  developed argumentation,  [will be] deemed  waived            for  purposes of  appeal."   Grella v.  Salem Five  Cent Sav.                                         ________________________________            Bank,  42 F.3d  26, 36  (1st Cir.  1994); see  also Executive            ____                                      ___  ____ _________            Leasing v. Banco Popular De Puerto  Rico, 48 F.3d 66, 68 (1st            ________________________________________            Cir.)(On  appeal,  "[w]e will  not  rely  upon arguments  and            allegations  that are  developed only  in the  district court            pleadings."), cert. denied, 116 S. Ct. 171 (1995).                            _____ ______                                         -11-                                          11                      Nor  do  we consider  those  counterclaim  I issues            which  the  district  court  held hinged  on  an  affirmative            obligation  or   implied  agreement  that   the  FDIC  assist            appellant  in obtaining  a right of  way over  Falmouth Woods            Road.  Appellant did not  object to the magistrate's decision            and,  therefore,  waived his  right  to  appeal the  district            court's order on this  question.  See Henley Drilling  Co. v.                                              ___ _______________________            McGee,  36  F.3d 143,  150-51 (1st  Cir.  1994); see  also 28            _____                                            ___  ____            U.S.C.    636 (b)(1)(C);  Fed. R. Civ. P.  72(b).  We concern            ourselves  solely  with  LeBlanc's  defense  to  the   FDIC's            affirmative claims and  those counterclaim I  arguments which            the district court held survived D'Oench and section 1823(e).                                             _______            For the sake of convenience,  we use "FDIC" to refer  to both            the  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  the            FDIC's claim for the  deficiency due on the $750,000.00  note            and entered judgment in  favor of the FDIC  in the amount  of            $686,942.78, plus post-judgment interest.  On appeal, LeBlanc            argues that the district  court erroneously held that D'Oench                                                                  _______            and section  1823(e) barred  his  defense that  the FDIC,  as            receiver  of NBNE,  breached  its obligation  to perform  the            terms of  the loan agreement in good faith, see Mass. Gen. L.                                                        ___            ch. 106    1-203, by competing with him for  the fee interest                                         -12-                                          12            in  Falmouth Woods  Road.   He contends  that his  defense of            economic coercion concerns the  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  district            court's analysis.  Without deciding whether breach of implied            covenant of good faith and fair dealing claims  are generally            precluded  by D'Oench,  we hold  that the  particular defense                          _______            advanced in this case is  barred.  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  asserting  as  either a  claim  or  defense            against the  FDIC oral agreements or  'arrangements.'"  Adams                                                                    _____            v.  Zimmerman, 73  F.3d  1164, 1168  (1st Cir.  1996)(quoting            _____________            Timberland Design,  Inc. v.  First Serv.  Bank for Sav.,  932            _______________________________________________________            F.2d 46, 48-50 (1st Cir. 1991)).  Its statutory codification,            section 1823(e), "bars anyone from asserting against the FDIC            any  'agreement' that is not  in writing and  is not properly            recorded in  the  records of  the bank."   Id.;  see also  12                                                       ___   ___ ____            U.S.C.     1823(e).    Section 1823(e),  as  amended  by  the            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                      section  or section  1821 of  this title,                                         -13-                                          13                      either  as  security  for  a loan  or  by                      purchase  or as  receiver of  any insured                      depository  institution,  shall be  valid                      against   the  Corporation   unless  such                      agreement --  (1) is in  writing, (2) was                      executed  by  the depository  institution                      and  any  person   claiming  an   adverse                      interest   thereunder,    including   the                      obligor,   contemporaneously   with   the                      acquisition   of   the   asset   by   the                      depository institution,  (3) was approved                      by   the  board   of  directors   of  the                      depository   institution   or  its   loan                      committee,   which   approval  shall   be                      reflected in the minutes of said board or                      committee,    and     (4)    has    been,                      continuously,  from  the   time  of   its                      execution,  an  official  record  of  the                      depository institution.            12 U.S.C.   1823(e).  Though there is some disagreement as to            whether  D'Oench  and  section  1823(e)  should  be  read  as                     _______            coextensive, see Adams,  73 F.3d at  1168-69 n.2, all  courts                         ___ _____            agree that  they serve the  same purpose: to  "prohibi[t] all            secret  agreements that tend to make  the FDIC susceptible to            fraudulent  arrangements."  Timberland  Design, Inc. v. First                                        _________________________________            Serv. Bank for Sav., 932 F.2d 46, 48 (1st Cir. 1991).              ___________________                      The  scope of  agreements precluded by  D'Oench and                                                              _______            section  1823(e) is expansive.   See Adams, 73  F.3d at 1169.                                             ___ _____            It  includes  promises  to  perform, as  well  as  fraudulent            misrepresentations  or  warranties,   whether  the  FDIC  had            knowledge of the  fraud or misrepresentation  at the time  it            acquired the asset or not.  Langley v. FDIC, 484 U.S. 86, 91-                                        _______________            94 (1987).  Additionally, it embraces both affirmative claims                                         -14-                                          14            and defenses and  extends to arguments  asserted in terms  of            contract or tort.  Timberland, 932 F.2d at 49-50.                               __________                      LeBlanc's  main  attack  is  based  on  the  FDIC's            failure to actively assist him in obtaining a Falmouth  Woods            Road  easement upon  taking  control of  BNE's  assets.   The            problem  with  this  is that  nothing  in  the  terms of  the            $750,000.00  note can be  read to create  such a duty  on the            part  of the  FDIC.    LeBlanc,  in  fact,  admits  that  the            $750,000.00  note was contingent  neither upon  his obtaining            nor  the  FDIC or  its  predecessors  providing an  easement.            Accordingly, this attempt to shift the risk LeBlanc knowingly            assumed  when  he  purchased the  land-locked  Prospect Hills            property  to  the  FDIC, and  consequently,  to  unsuspecting            creditors  and depositors,  must fail.   See  Timberland, 932                                                     ___  __________            F.2d at 48.  Permitting appellant to proceed on the  basis of            an  unrecorded  agreement  would  undermine  the accuracy  of            NBNE's  records and  further  complicate the  FDIC's task  of            valuing NBNE's assets.  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  that the FDIC, as  receiver of NBNE,            breached  its   obligation  to  perform  the   terms  of  the            $750,000.00 loan  agreement in  good faith in  three regards.                                         -15-                                          15            He  contends that the FDIC deprived  him of the fruits of his            bargain, see  Anthony's Pier  Four, Inc. v.  HBC Assoc.,  411                     ___  _________________________________________            Mass.  451, 471 (1991), by  withholding funds due  him on the            DDM  construction project  and by  making an  easement across            Falmouth Woods Road contingent  upon provision of  additional            collateral  or a  reduction in  note principal  and utilizing            artificially   low   appraisals   of   the   Prospect   Hills            development.   He  also alleges  that the  FDIC's failure  to            extend  him an  easement  across Falmouth  Woods Road  during            work-out negotiations constitutes a breach ofthe agreement.                        There is an  argument that D'Oench  precludes these                                                 _______            claims,  at least  to  the extent  that  they rely  upon  any            specifics in  the negotiations  between the borrower  and the            bank, even if the specifics are not formally agreements.  See                                                                      ___            Langley, 484  U.S. at  91-94.   But  even if  we assume  that            _______            D'Oench does not  bar LeBlanc's breach of an implied covenant            _______            of  good faith and fair  dealing counterclaims --  and, as we            indicated  in  the previous  section,  we  are certainly  not            deciding that question here -- appellant has not convinced us            that there  is any  general obligation under  state law  that            required  the bank (in the  absence of an  agreement) to take            the affirmative  steps appellant now claims  should have been            taken.                        We detect  no bad faith  in the FDIC's  decision to            withhold  DDM project  funds or  to make  an  easement across                                         -16-                                          16            Falmouth Woods Road contingent upon  additional collateral or            a  reduction in principal.   Though the  FDIC's dealings with            LeBlanc were arguably "hard-nosed," there is no evidence that            the FDIC's actions  deprived LeBlanc of  the benefits of  the            loan  agreement.   See  Anthony's  Pier,  411 Mass.  at  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  complaints about the terms            on which the FDIC proposed to  execute or continue agreements            with him.  But  having engaged in rigorous bargaining  of his            own,  LeBlanc cannot now contend  that it was  unfair for the            FDIC to bargain  for more security  on the $750,000.00  note.            The  FDIC had  no duty  at all  under the  loan agreement  to            extend appellant an easement, let alone to provide him one on            terms which were more  favorable to him.  Nothing  prevents a            party to a bargain from engaging in  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  -- i.e., the loan agreement  -- by            negotiating  another  -- i.e.,  the  easement.   See  Burton,                                                             ___            Breach of Contract and the Common Law Duty to Perform in Good            _____________________________________________________________            Faith, 94  Harv. L. Rev. 369, 372-73 (1980).  As the district            _____            court astutely  observed,  "the  FDIC  owned  something  that                                         -17-                                          17            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.  Massachusetts law implies a            duty  of  good faith  and  fair  dealing  in  every  existing            contract.  See Anthony's  Pier, 411 Mass. at 472;  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  theretofore enjoyed with the            FDIC.   We, therefore, hold that LeBlanc's claim fails to the            extent that it relies on the loan agreement.  That claim also            fails  to  the  extent that  it  rests  on  an obligation  to            negotiate  new contracts in good faith.  We are not convinced            that  the  loan  agreement  contained  any  such  contractual            obligation, see  Schwanbeck v. Federal-Mogul Corp., 412 Mass.                        ___  _________________________________            703,  706 (1992),  and  do not  find,  for that  matter,  any            evidence  that the  FDIC entered  into work-out  negotiations            with an ulterior purpose or bad motives.                                                   IV.                                         IV.                                      CONCLUSION                                      CONCLUSION                                      __________                                         -18-                                          18                      For the foregoing  reasons, we affirm the  district            court's grant of summary  judgment.  The judgment sum  of the            district court is affirmed.  There will be added to that sum,            $686,942.78, such post-judgment interest as is due.                                           -19-                                          19
