
USCA1 Opinion

	




          October 27, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1320                                 KEVIN PRICE, ET AL.,                               Plaintiffs, Appellants,                                          v.                                 SHAWMUT BANK, N.A.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Keeton*, District Judge.                                          ______________                                 ____________________            Edmund J. Waters, Jr. for appellants.            _____________________            Richard V.  Wiebusch  with whom  Jude  A.  Curtis and  Michael  G.            ____________________             ________________      ___________        Bongiorno were on brief for appellee.        _________                                 ____________________                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.               COFFIN,  Senior  Circuit  Judge.   This  appeal  raises  the                        ______________________          question  of  the   proper  time  to  commence   the  statute  of          limitations  period in an action challenging  a bank's failure to          discharge a mortgage.  Plaintiffs contend that the district court          started  the clock  prematurely, and  thus wrongly  dismissed the          case as time-barred.               The facts, drawn from the complaint, are as follows.  In the          summer  of  1989, plaintiffs  Kevin  and  Linda  Price began  the          process of building  a house on Lot 10 of  a subdivided parcel of          land  they owned  in Deerfield, New  Hampshire.   Arlington Trust          Company, the  predecessor in interest to  defendant Shawmut Bank,          held a $250,000 mortgage on the entire property.  To finance  the          construction, the Prices obtained a $100,000 loan from Rockingham          County Trust Co., which was secured by a mortgage specifically on          Lot  10.  The Prices allege that, before signing with Rockingham,          they  elicited  an  oral promise  from  Arlington  that it  would          discharge  its mortgage on Lot 10  in exchange for $30,000 of the          $100,000 Rockingham loan.               The  plaintiffs paid  the  $30,000 to  Arlington in  October          1989.    Sometime  thereafter, as  a  result  of  a title  search          conducted in connection with the sale of the house on Lot 10, the          Prices learned that the  mortgage had not been discharged.   They          hired an attorney, who  made multiple demands for release  of the          mortgage  on  Shawmut, which  by  then  had acquired  Arlington's          assets and liabilities.  On  both February 14 and March 6,  1990,          Shawmut, in writing, refused to do so.               Further discussion  ensued and, in April,  Shawmut agreed to          subordinate  its  mortgage  to  Rockingham's   construction  loan          mortgage.  Rockingham foreclosed on Lot 10 in June 1990.  Shawmut          foreclosed on the remainder of the property about a year later.               The Prices filed this lawsuit  on March 23, 1993,  asserting          various  claims arising  from the  bank's failure to  provide the          mortgage  discharge.   The district  court dismissed  the action,          holding that  the three-year statute of  limitations contained in          N.H.  Rev.  Stat. Ann.     508:4 began  to  run  when the  Prices          "learned  that there was an encumbrance on Lot 10 which Arlington          had  wrongfully failed  to remove."   The  court found  that this          occurred, according  to the  allegations in the  complaint, "well          more than three years before they commenced this action."               On appeal, plaintiffs argue that the district court selected          the  wrong point in time  to begin the  limitations period.  They          assert that the injury  occurred, and the statute  began running,          only when  Rockingham foreclosed on  Lot 10 in June  1990.  Until          that time,  plaintiffs maintain,  Shawmut could have  changed its          position  and issued  the discharge that  would have  allowed the          sale of the house to proceed smoothly.               We agree with the district court that the limitations period          commenced when the Prices learned that Arlington had not complied          with  its alleged  promise  to discharge  the  Lot 10  lien  upon          receipt of  the $30,000.*  Unquestionably,  the agreement between                                        ____________________               *  The complaint  indicates that  this probably  occurred in          late  1989 but, in any event, in February 1990 when Shawmut first          informed  the Prices in writing  that it would  not discharge the                                         -3-          the Prices and  Arlington was breached  when Arlington failed  to          release  Lot 10 from the  mortgage shortly after  the Prices made          their  payment.  The breach  had an immediate  impact: it clouded          the  Prices' title to Lot  10, stalling the ongoing purchase-and-          sale process, and caused the Prices to hire an attorney to pursue          the  issue.   Indeed,  the causes  of  action asserted  in  their          complaint center on Shawmut's  failure to discharge the mortgage,          not on  the  subordination of  its  mortgage and  the  subsequent          foreclosures.               During  the negotiations  in late 1989  and early  1990, the          Prices  undoubtedly hoped  that  they could  persuade Shawmut  to          grant the release.   That  the irrevocable injury  did not  occur          until Rockingham foreclosed in  June, however, does not eradicate          the injury that occurred  as soon as Arlington failed  to release          the  mortgage upon receipt of  the Prices' payment.   See Rowe v.                                                                ___ ____          John  Deere,  533 A.2d  375, 376-78,  130  N.H. 18,  21-23 (1987)          ___________          (limitations period commences at time of initial injury, not at a          later  date  when  plaintiff  learned  the  full  extent  of  his          injuries).  Plaintiffs' theory comes down to saying that, so long          as an injury  remains reversible through  successful negotiation,          it  has not  accrued.   Such  would  indeed defeat  the  policies          underlying limitations statutes.               Moreover, even  when their lack of  success became apparent,          the  Prices still  had more  than two  and one-half  years during          which  they could have  filed a timely lawsuit.   As the district                                        ____________________          mortgage.                                          -4-          court ruled, "[t]heir  failure to do so . . .  serves as a bar to          their present claims."               Affirmed.               ________                                         -5-
