USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1154
STEPHEN DARR, TRUSTEE OF COLUMBUS MORTGAGE AND
LOAN CORPORATION OF RHODE ISLAND, INC.,
Plaintiff, Appellee,
v.
JOSEPH R. MURATORE, SR., ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Cyr and Stahl, Circuit Judges,
______________
and Fuste,* District Judge.
______________
____________________
Paul J. Bogosian, Jr.
_____________________

with whom Hodosh, Spinella & Angelone

___________________________

on brief for appellants.

Joseph Avanzato with whom John F. Bomster and
_______________
________________
Sheehan Incorporated were on brief for appellee.
____________________

Adler Pollock
_____________

____________________
November 1, 1993
____________________
____________________
*Of the District of Puerto Rico, sitting by designation.

FUSTE,
FUSTE,

District Judge.
District Judge.
______________

The

Trustee

for a

bankrupt

mortgage lending institution brought an action against the former

chairman

and chief executive

officer of the

who was also an officer and director

three

separate

real

estate

controlled by the couple.

over two million
institution

and

of the bankrupt lender, and

development

corporations

The Trustee's action sought to recover

dollars allegedly owed to

by defendants.

company, his wife,

the bankrupt lending

The Trustee contends that defendants

first, improperly created the debt, second, fashioned a favorable

calculation

of the amount

due, and third,

incorrectly declared

the loans repaid

The
to

through a questionable real

estate conveyance.

Trustee claims that defendants violated their fiduciary duty

the

institution

and

to

the

lender's

numerous

debenture

holders.
Defendants
transgressed,
failed

that

and counter that

to mitigate

foreclosure

argue

damages to the

the debt.

fiduciary

contend that

reduction of any
rental income

was

waste and

bankrupt estate

by allowing

which allegedly were

conveyed in

They also take issue with the method

of debt calculation utilized by the district court.

defendants

duty

the Trustee committed

on the properties

order to satisfy

no

they

are

entitled

to

outstanding debt because of the

from, the conveyed

In addition,
a

significant

equity in, and

real estate, and to

a further

reduction of the debt because of the Trustee's alleged failure to

prevent

the foreclosures of the properties.

Finally, defendants

-22

argue

that they

plaintiff as

should receive

a result

of various

a setoff

of

any debt

unrelated expenses

advanced by defendants to the plaintiff.

owed to

allegedly

In
decisions
judgment

the

of the
with

defendants,

instant

appeal,

district court:

respect

to

the

defendants
A

grant of

challenge

two

partial summary

total remaining

debt

owed

by

and the court's certification of final judgment.

We

now affirm the district court's partial summary judgment and hold
affirm
that

final judgment

claims

certification was

of payment through

justified.

Defendants'

property transfer, waste,

failure to

mitigate, setoff, and miscalculation of debt are unavailing

as a

matter of law.
I.
I.
Background
Background
__________
From August 1961 to
Joseph R. Muratore,
mortgage

Sr. ("Mr. Muratore") owned and

lending

institution,

Corporation of Rhode
real

estate

December 1991, Defendant-Appellant

Columbus

Island, Inc., as

development

Mortgage

well as its

corporation

controlled a
&

Loan

wholly-owned

subsidiary,

Columbus

Development Corporation.

The nature of the business

Mortgage was to serve as

a mortgage lending firm specializing in

residential
mortgages

real
on real

estate
estate.

Mortgage entered into the

its

real estate dealings,

loans
At

secured
some

by

first

of Columbus

and

second

point, however,

Columbus

business of making unsecured

loans in

financing them in

-33

large part through

the sale of

debentures.1

business

step

debentures

to

Columbus Mortgage

further

and

sold

refinance

the

first

of December

obligations.

As

$4,400,139 in

outstanding debentures.

as to

Columbus Mortgage.

declared

second

generation

generation

31, 1989,

Muratore owed a fiduciary duty

eventually took its

of

of

maturing

Columbus Mortgage

had

It is undisputed that Mr.

to the debenture holders, as well

In February

bankruptcy, acknowledging

1991, Columbus

its inability

to

Mortgage

repay its

debts in full, including its debentures.

Muratore

Mr. Muratore and his

wife, Defendant-Appellant Rose E.

("Mrs.

controlled

Muratore"),

corporations, officially
inter alia, were
estate:

unrelated to

other

Rhode

Columbus Mortgage,

in the business of selling

Island

that,

and developing real

Defendants-Appellants Muratore Agency,

Inc. ("Muratore

Agency"), Muratore Realty Corp. ("Muratore Realty"), and Shawomet

Holding Associates ("Shawomet") (collectively

referred to as the

"Separate Muratore Companies").

We refer, collectively,

Muratore

corporations as

persons

and

Muratore

the

to all

"Muratore

Defendants".
There
several unsecured

is

no

doubt

loans

to

that
the

Columbus

Separate

Mortgage provided

Muratore

Companies,

drawing funds from

the pool of money accumulated

of debentures to citizens of

Rhode Island.

by the selling

These loans

were by

____________________

1"Debentures are unsecured debt, as opposed to bonds, which

are secured by the assets of the issuing company." In re Worlds
_____________
of Wonder Sec. Litigation, 814 F.Supp. 850, 854 n.2 (N.D.Cal.
__________________________
1993).
See also SEC v. Howatt, 525 F.2d 226, 229 (1st Cir.
________ ______________
1975).
-44

no means insignificant.
Companies,

most

$2,044,313

as of

or
June

In
all

fact, loans to the Separate Muratore

of

30,

which

were

1989, more

unsecured,

totaled

half of

Columbus

than

Mortgage's total assets of $3,973,791 at that time.

the

In addition,

record strongly suggests that Columbus Mortgage's funds were

used to
record
Columbus

pay miscellaneous personal

contains

no proof

Mortgage.

The

Defendants claim that their

$900,000 in
Appellee

of

debts of Mr. Muratore.

repayment

bottom

line

from
is

Mr. Muratore

that

the

The

to

Muratore

total indebtedness was approximately

December 1990, and

$1,200,000 in 1992.

Plaintiff-

Stephen Darr, Chapter 11 Bankruptcy Trustee of Columbus

Mortgage ("Trustee"), argues that the defendant's

obligation was

over $2,000,000.
The Muratore
debt in

cash.

rather than
claim

However,

Companies paid

their

portion of

the payments were applied

to accumulated

that

off some

interest.

remaining

debt

to principal

The Muratore
to

the

Columbus

Defendants

Mortgage

was

discharged in full on or about December 15, 1990, when two pieces

of real

estate of disputed

Muratore

Defendants to

equity value were conveyed

Columbus Mortgage.2

In an

from the

affidavit,

Mr. Muratore, an experienced appraiser in his own right, affirmed

under oath

that at the

the fair market value of

approximately

$800,000

time of the conveyance

he believed that

the properties was $2,000,000, and that

were

still

owed

on

the

properties'

____________________

2The two properties conveyed by the Muratore Defendants to

Columbus Mortgage are located at 1845 Post Road, Warwick, Rhode
Island, and 275-277 Atwells Avenue, Providence, Rhode Island.
-55

mortgages.

Thus, according to

the properties was

Mr. Muratore, the equity value of

approximately $1,200,000.

Mr. Muratore also referred to

In

the affidavit,

an independent aggregate appraisal

of the properties,
that as of

before encumbrances,

December 15, 1990

approximately $860,000.
appraisal of

$856,000 as

of December

Muratore Defendants'

the equity

Scanning the

independent

of $1,660,000,

the

Post

in the properties

record, we
Road

19, 1992.

only find

Property,

The Trustee

valuation of the property,

given the unpaid portion of

meaning

valued

was

an

at

challenges the

contending that

the mortgages on the two properties,

their aggregate equity value was less than $100,000.

The

Muratore

Defendants

claim

that

the

Trustee

committed waste by failing to refinance the properties' mortgages

and allowing
equity
that

foreclosure, causing

remained.

362 because

on the properties

they lacked equity

Defendants contend that

owed to

to lose

whatever

Columbus Mortgage, through the Trustee, argues

it permitted foreclosure

U.S.C.

the estate

they deserve a

value.3

pursuant to 11

The Muratore

reduction of the

Columbus Mortgage equal to the sum

amount

of the equity in the

properties, the accrued rental income derived from the properties

before

foreclosure,

Companies

by

and

Columbus

funds owed
Mortgage

to

the

stemming

Separate Muratore
from

transactions

unrelated to the debt at issue in this case.

____________________

311 U.S.C.
362 provides for an automatic stay on the
property
of an estate
which is undergoing
voluntary or
involuntary bankruptcy. However, under
362(d)(2)(A), a party
in interest may obtain relief from the stay if the debtor has no
equity in the property.
-66

Two months after

February

15,

1991,

Mr. Muratore, filed

the conveyance of the

Columbus Mortgage,
a voluntary

under

Chapter 11

properties, on
the

guidance of

bankruptcy petition

with the United States Bankruptcy Court for the District of Rhode
Island.
as

11 U.S.C.

a debtor

1121.

At first, Columbus Mortgage operated

in possession;

brought an adversary

however,

the creditors'

committee

proceeding in the bankruptcy court

for the

purpose of collecting money damages from the Muratore Defendants.

In early April
the

United

Island.

1992, the adversary

States District

Soon thereafter,

Court

proceeding was withdrawn

for

Stephen Darr

Mortgage's

Bankruptcy Trustee.

creditors'

committee, continued

damages allegedly sustained

the District

of

was appointed

to

Rhode

Columbus

The Trustee, substituted for the

a

six-count action

by the estate and

to recover

supposedly caused

by the Muratore Defendants.4

On October 14,

1992, the Trustee filed a

P. 56 motion for partial summary

judgment on Count
debt due and owing.

Fed. R. Civ.

judgment and for entry of final

III of the first amended

complaint alleging a

Fed. R. Civ. P. 54(b).

On January 12, 1993,

the district court granted the Trustee's motion and entered final
judgment

on Count

III against

amount of $2,146,034.24.

The

the Muratore

Defendants

in the

district court concluded that

the

Muratore Defendants

were in

fact one

entity,

one corpus,

and

____________________

4The Trustee's six-count action includes the following

allegations:
Count I, Breach of Fiduciary Duty; Count II,
Conversion; Count III, Debt Due and Owing; Count IV, Breach of
Contract, and Count V, a second Breach of Contract.
-77

ordered final
reason for

judgment on Count

delay."

The

III because there was

district judge's primary

"no just

rationale for

Rule 54(b) certification was that the Muratore Defendants' assets

available to settle
debt and that

relief should be granted to

as soon as possible.
Count III

the claim were barely sufficient

the debenture holders

The court noted that entry

would probably cause

to pay the

of judgment on

the other counts to

become moot

because of the limited resources of the Muratore Defendants.

II.
II.
Summary Judgment
Summary Judgment
________________
In order to
of

summary judgment

review the district court's

on Count

III of

the

certification

adversary proceeding

against Mr. Muratore, we must decide whether the district court's

ruling fulfilled the

requirements for summary judgment

and Rule

54(b) certification.5
A.
A.

Standard for Review

Standard for Review
___________________
Our review

of summary

judgment decisions

is plenary.

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

____________________
judgment

is appropriate "if

Summary

the pleadings, depositions, answers

____________________

5We do not disturb the district court's determination that

the various actorswho constitute theMuratore Defendants arealteregos of one another. That finding by the district court has not
been seriously challenged on appeal and rests on sound legal
principles. See Oman Int'l Fin. Ltd. v. Hoiyong Gems Corp., 616
___ __________________________________________
F. Supp. 351, 363-66 (D.R.I. 1985) (discussing law of corporate
collectivity) (affirmatively cited in United Elec., Radio and
________________________
Mach. Workers of America v. 163 Pleasant Street Corp., 960 F.2d
_______________________________________________________
1080, 1096 (1st Cir. 1992)); cf. Vucci v. Myers Bros. Parking
___ ______________________________
Sys., 494 A.2d 530, 535-36 (R.I. 1985). Thus, we will discuss
____
the Columbus Mortgage debt as an obligation of the aggregate of
defendants without
segregating loans among
the particular
Muratore entities.
-88

to interrogatories,

and admissions

on file,

together with

the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of

law."

standard to the

Fed. R.

Civ. P. 56(c).

instant case, we

view the

most favorable to the nonmovants, the

least a

Muratore Defendants.

F.2d 17, 20

Hearst Corp., 669

____________

into dispute after a

(1st Cir. 1989) (per

F.2d 14, 17 (1st

(1st

nonmoving party

for a jury to return

has a duty

See Jaroma v.
___ _________

"[T]here

is no

evidence favoring the

a verdict for that party."

Anderson v. Liberty Lobby, Inc., 477 U.S.

_________________________________
nonmoving party

moving party

curiam); White v.
________

Cir. 1982).

issue for trial unless there is sufficient

B.
B.

Bank
____

F.2d 94, 97

offers evidence of the absence of a genuine issue.

motion.

light

A nonmovant, however, bears the burden of placing at

single material fact

Massey, 873
______

applying this

record in the

One Texas, N.A. v. A.J. Warehouse, Inc., 968

_________________________________________
Cir. 1992).

In

242, 249 (1986).

to oppose a cogent

summary judgment

Id.
___

Discussion
Discussion
__________
Defendants

assert that there

exist genuine

material fact regarding the debt owed to Columbus

preclude a grant of summary judgment.
allegations, we must

issues of

Mortgage which

In order to address these

examine whether the real

estate conveyance

was a valid debt payment, whether the defendants were entitled to

any reductions
defendants to

of the debt, and

apply payments

whether it was correct

to the principal

for the

rather than

the

interest component of the debt.

-99

1.
1.

Were Real Estate Conveyances Debt Payments?

Were Real Estate Conveyances Debt Payments?
___________________________________________
The

record

clearly

demonstrates

Defendants

owe Columbus

Mortgage a

Defendants

admit

certain

Mortgage,

but

bankruptcy,

to

argue

two

that

valuable

Separate Muratore

prior

significant

amount

of

to

filing

properties

Companies

to

that

were

Columbus

the

Muratore

sum of

debt

to

money.

Columbus

for

Chapter

11

conveyed

from

the

Mortgage

in

partial

satisfaction of the admitted debt.

Regardless
estate- for-debt

of the

fiduciary

propriety

transaction,6 Mr. Muratore admitted

district court that the obligation created by his

Columbus Mortgage loans
money debt.
through a

of the

real-

before the

arrangement of

to the Separate Muratore Companies was a

There was no agreement that the debt could be repaid

transfer of properties chosen by

there evidence

of custom from

the debtor.

which such an agreement

Nor was

could be

implied.

Since

loans are to be

normally repaid with money

and

not with houses or any other less liquid type of asset, even when
viewing the record
Defendants

in the light most hospitable

we find untenable

the argument that

to the Muratore

the real-estate

____________________

6This court finds questionable that the Separate Muratore

Companies attempted to repay a seven-digit debt through a
property transfer at the direction of Mr. Muratore when, two
months later, the creditor, Columbus Mortgage, voluntarily filed
a Chapter 11 bankruptcy petition also by the hand of Mr.
Muratore.
The facts undisputedly show that Mr. Muratore was
effectively
in control of
both the creditor
and debtor
institutions involved in these transactions.
It is evident that
a large cash debt was supposedly satisfied at a time and under
circumstances which greatly benefitted the Muratore Defendants
and harmed the soon-to-be declared bankrupt company controlled by
Mr. Muratore, working to the detriment of the unsecured creditors
of that company.
-1010

transfer satisfied
that

the debt

identities.
of loan

the debt.

and

the real

We agree with the

estate

district court

transaction have

separate

No genuine factual dispute revolves around the issue

satisfaction

by the

real estate

conveyance.

Without

prejudice to the bankruptcy court's final assessment of any claim

by the Muratore Defendants arising from the real estate transfer,

the money debt remains and the district court properly decided to

enforce the payment

of the same.

We now turn to a determination

of the extent of the debt.

2.
2.

Waste, Failure to Mitigate, and Setoff

Waste, Failure to Mitigate, and Setoff
______________________________________
The district

the

court held as

Muratore Defendants

mitigate

a matter of law

have defined

are unavailing theories

as waste

as they pertain

for summary judgment on Count III.

We agree.

failure to mitigate theories operate on

real-estate

conveyance

Defendants' debt.
conveyance
payment

The district

cannot rightly

on the

credit or

was

payment

from the

to the motion

Both the waste and

toward

the

Muratore

court found that the real-estate

Muratore Defendants'

entirely separate

failure to

the presumption that the

be deemed the

complaint relating

and

that what

to the

debt

before the bankruptcy

income that

the bankrupt estate

a money

and, therefore,

transferred properties

debt owed by

brought up

equivalent of

court.

defendant, and
The $18,000

any

is

may be

in rental

supposedly received due

to its

possession of the properties is no different.

The question
waste

and failure

of setoff

to mitigate,

is different

in that

-1111

than those

of

defendants' theory

of

setoff

involves

conveyance.
of

The

$418,046.25

indebtedness

debts

not

dependant

on

the

real

Muratore Defendants allege a right

under

11

U.S.C.

carried on the

553,7

citing

ledger cards of

property

to a setoff
evidence

of

Columbus for wages

paid by the Muratore Defendants to employees of Columbus, and for

rental obligations due from Columbus.
Section

553 does not

create new substantive

law, but

incorporates in bankruptcy the common law right of setoff, with a

few additional restrictions.

U.S. ex rel. I.R.S. v. Norton, 717

______________________________

F.2d 767, 772 (3d Cir. 1983).

The right of setoff allows parties

that

owe mutual debts to each

subtract one from

other to assert the amounts owed,

the other, and

pay only the

balance.

In re
______

Bevill, Bresler & Schulman Asset Mgmt. Corp., 896 F.2d 54, 57 (3d
____________________________________________
Cir. 1990).

However, allowing setoff undermines a basic premise

of bankruptcy law,
creditor

equality among creditors, by

"permit[ting] a

to obtain full satisfaction of a claim by extinguishing

an equal amount of the creditor's obligation to the debtor . .

in effect,

the creditor receives a 'preference'."

In re Braniff Airways, Inc.,

___________________________

Id. (quoting
___

42 B.R. 443, 448 (Bankr. N.D.

Tex.

1984)). As a result, setoff in the context of a bankruptcy is not

automatic.
are mutual.

Under section 553, debts cannot be setoff unless they

Mutuality requires

that the debts "be

in the same

____________________

7In pertinent part, 11 U.S.C.

553 provides: "[T]his title
does not affect any right of a creditor to offset a mutual debt
owing by such creditor to the debtor that arose before the
commencement of the case under this title against a claim of such
creditor against the debtor that arose before the commencement of
the case." 11 U.S.C.
553(a) (1993).
-1212

right

and

between

capacity."

the

same

parties,

4 Collier on Bankruptcy
_______________________

Where the liability

standing

in

553.04 (15th

of the party seeking the

the

same

ed. 1992).

setoff arises from

breach of a fiduciary duty, mutuality of debts does not exist and

therefore no

setoff is available.

Burnham Lambert Group, Inc.,

______________________________

113

Id.
___

See also In re Drexel

___ ____ _____________

B.R.

830,

S.D.N.Y. 1990); In re Esgro, Inc., 645 F.2d

__________________
1981)

847-48

(Bankr.

794, 797 (9th

Cir.

(discussing precursor to section 553); Allegaert v. Perot,

__________________

466 F.Supp. 516, 518 (S.D.N.Y. 1978).

If the district court correctly found that Mr. Muratore

breached

his fiduciary duty to Columbus

unsecured loans to

Mortgage by causing the

the Muratore Defendants to be

made, then the

debts of the two parties are not mutual and no setoff

as a

matter of

law.

The

district court

is allowed

determined that

the

Muratore Defendants violated their fiduciary responsibilities and

assisted in the bankruptcy of Columbus Mortgage by taking actions

to

their benefit

holders.

The

and

Muratore

transactions carried
side,
the

interests

Defendants

on between

other,

were

we

determination

find

that the

fiduciary

arm's-length

loan

on the

one

business

dealings.

documentation as proof

error

Muratore

obligations.

the

and the Muratores, on

the loans and terms at issue.

cannot

debenture

that

Columbus Mortgage,

cite their accounting

legitimacy of
record,

honest,

of the

argue

and the Separate Muratore Companies

Defendants

their

against the

in

of the

After reviewing the

district

court's

Defendants seriously

breached

This

the

breach

of

fiduciary duty

-1313

created a

lack of

mutuality between

the unsecured

loans which

were made to the Muratore Defendants by Columbus Mortgage and any

money advanced to

Columbus Mortgage by the

Muratore Defendants.

As a result, there is no genuine issue of material fact regarding

the propriety of

any setoff

of the

debt owed

by the

Muratore

Defendants.
3.
3.

Applying Cash Payments to Interest

Applying Cash Payments to Interest
__________________________________
Defendants

improper because of
payments on
amount

next

argue

that

a dispute about the effect

their debt obligations.

owed is

summary

lower than

the

judgment

of partial money

Defendants claim

trial court

was

that the

found because

the

partial payments were to be used to reduce the principal (without

capitalizing
accumulated

unpaid

interest)

interest.8

The

repayment should have been

rather
district

than

first

court

paying

concluded

on an interest-first basis

that

and found

that the Separate Muratore Companies owed substantially more than

previously suggested
The
have

by the

Muratore Defendants
sufficient evidence

Columbus Mortgage

argue that the

to decide

account ledgers.

district court

that

the repayment

did not

method

should have been on an interest-first basis.

It
agreement
promissory

is undisputed that

detailing the method

notes

used

standard practice for

the record contains

for repaying the

by Columbus

Mortgage

no express

loans.

suggest

Columbus Mortgage was payment

Sample

that the

of interest

____________________

8By allowing the payment of principal first, the Muratore

Defendants were able to save over $600,000 in interest on their
loans.
-1414

first,

with the

decreasing
record
then

remainder

of any

the principal.

given

payment going

Defendants did

not place

toward

into the

any promissory notes allowing payment of principal first,

interest.

Defendants

rely

primarily

on unsubstantiated

statements and assertions that question the evidence submitted by

the Trustee, and
the

Trustees'

fail to present hard evidence

or

the

outstanding obligation.

district

done incorrectly and

but

provide

assertions.
evidence"

calculations

of

the

Defendants assert that such calculations

were

no

court's

to cast doubt on

were based on

evidenced

incorrect assumptions,

alternatives

to

support

these

In short, Defendants offer no "significant probative

that

repayment.

creates a

genuine

dispute about

the

terms of

Anderson v. Liberty Lobby, Inc., 477 U.S.

________________________________

242, 249

(1986).
We

note

further that

repayment ultimately presents

but a legal

that, absent

an express

presumption that
then principal.9

terms of

a jury

While Rhode Island

law is

normal rule throughout the nation is

agreement to the

loan payments are

See
___

over the

not a factual question for

question for the court.

unclear on the subject, the

Exemption

the dispute

contrary, there

made to

interest first

is a

and

In re Department of Energy Stripper Well

_________________________________________

Litigation, 944 F.2d

914, 916

(Temp. Emer.

Ct. App.

_____________________
____________________

9Some courts have referred to this principle as the "'United

States Rule' on partial payments." Shutts v. Phillips Petroleum
_____________________________
Co., 567 P.2d 1292, 1321 (Kan. 1977), cert. denied., 434 U.S.
___
_____________
1068 (1978).
The rule
has ancient roots; it was first
acknowledged by the Supreme Court over a century and a half ago.
See Story v. Livingston, 38 U.S. 359, 371 (1839).
___ ___________________
-1515

1991); Bonjorno v. Kaiser Aluminum & Chemical Corp.,

_______________________________________________

865 F.2d

566, 576 (3d Cir. 1989), aff'd in part and rev'd in part on other
________________________________________
grounds,
_______

494

U.S. 827

Corp., 749 F.2d

_____

(1990);

Devex Corp. v. General Motors

_______________________________

1020, 1025 n.6 (3d Cir. 1984), cert. denied, 474

____________

U.S. 819 (1985); Nat G. Harrison Overseas Corp v. American Barge

________________________________________________
Sun Coaster, 475
____________

F.2d 504,

507 (5th

Washington Loan and Trust Co., 95 F.2d

______________________________
Torosian v. National Capital Bank,
_________________________________

Cir. 1973);

Whiteside v.
____________

83, 87 (D.C. Cir. 1937);

411 F. Supp. 167, 173 (D.D.C.

1976); Shutts v. Phillips Petroleum Co., 567

___________________________________
(Kan.

1977), cert. denied,

_____________

State,
_____

335 P.2d

1077

Interest and Usury,

434 U.S.

(Okla. 1958);
99,

1068

P.2d 1292,

1321

(1978); Landess v.
___________

see also
________

45 Am.

Jur. 2d,

pp. 88-89; 47 C.J.S., Interest,

66,

pp. 72-73.
As
repayments
absent a
different

the

United

ordinarily

States

are

to be

contrary agreement,
rule

under

Rhode

Rule

contemplates

credited

we are not
Island

first

that

to interest,

inclined to

law.

loan

conjure a

Moreover,

sample

promissory notes, testimony, and the national custom of crediting

loan

repayments

court's

first

conclusion.

to interest,

Since there was

all

support

the district

no genuine factual dispute

about the property transfer, the alleged reductions or the manner

of

debt calculation, we

hold that the

district court correctly

calculated the outstanding debt at $2,146,034.24.

III.
III.
Entry of Final Judgment
Entry of Final Judgment
_______________________
A.
A.

Standard for Review

Standard for Review
___________________
-1616

A
judgment

district court

as to one or

"may

direct the

entry

more but fewer than all

of a

final

of the claims or

parties only upon an express

determination that there is no just

reason for delay and upon an

express direction for the entry

judgment."

Fed. R. Civ. P. 54(b).

of

Orders pursuant to Rule 54(b)

are reviewable by the Court of Appeals for abuse of discretion by

the trial

court.

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

_______________________________

437 (1956); Ginett v. Computer Task Group, Inc.,

____________________________________
1092 (2d Cir. 1992).
holding

to cases

certificate has

962 F.2d 1085,

This court, however, has limited the Mackey

______

like the
been granted
_______

instant one

in which

by the district

a Rule

court.

54(b)

Makuc v.
________

American Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982).
________________________
In
(1st Cir.
of a final
criteria.

Spiegel v. Trustees of Tufts College,

_____________________________________

1988), we held that the district court's certification

judgment pursuant to Rule 54(b)
First,

of finality."
655

Id. at
___

made its

viewing all claims

must satisfy certain

the judgment must have the

"requisite aspects

43 (citing Morrison-Knudsen Co. v. Archer,

______________________________

F.2d 962, 965 (9th Cir. 1981)).

must have

843 F.2d 38

Second, the district court

decision to certify

a final

and parties in perspective.

judgment while

See id. (citing

___ ___

Pahlavi v. Palandjian, 744 F.2d 902, 904 n.5 (1st Cir. 1984), and
_____________________

quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10

_________________________________________
(1980)).

Third, we examine

equities"
843 F.2d

the trial judge's "assessment of the

regarding any justifiable reasons for delay.

at 43.

This process is necessarily

requires an assessment

Spiegel,
_______

case-specific and

of the entire litigation

and an analysis

-1717

of factors which
against piecemeal
has fulfilled
basis

for

deference'

suggest reasons to relax

appellate review.10

its responsibility

certification
to the

court's

then

we

exercise of

its

Discussion
Discussion
__________
1.
1.

"If

the district

of enlightening

(quoting Pahlavi, 744 F.2d at 904 n.5).

_______
B.
B.

the usual prohibition

Two-Pronged Threshold Test

Two-Pronged Threshold Test

give

us as to

court

the

'substantial

discretion."

Id.
__

__________________________
The first
Count III, alone,

prong of our inquiry is

satisfies the requirement of

III of

the Trustee's first

amount

of money

Defendants.
Count

III

whether judgment on

owed to

There can be
provides

amended complaint simply

the

bankrupt estate

Count

asserts an

by the

Muratore

little doubt that entering judgment on

the requisite

Spiegel, 843 F.2d at 43.

_______

finality.

quantum

of

finality.

If a certain sum of money

See
___

is deemed to

be owed to a bankrupt estate, a decision that recognizes the debt

and orders payment is a coherent and final disposition.

The debt

is either owed or it is not.

____________________

10Factors analyzed by other courts in evaluating Rule 54(b)

motions include (1) the relationship between the adjudicated and
non-adjudicated claims, (2) the possibility that the need for
review might be mooted by future developments in the district
court, (3) the possibility that the same issue might have to be
considered again by the reviewing court, (4) the presence or
absence of a claim or counterclaim which might result in a setoff
against the judgment which is to be made final, (5) miscellaneous
considerations
such
as
delay,
economic
and
solvency
considerations, efficiency, frivolity of competing claims, and
expense.
Allis-Chalmers Corp. v. Philadelphia Electric Co., 521
_________________________________________________
F.2d 360, 364 (3d Cir. 1975).
-1818

Second, we

verify whether

the interrelatedness
case before him.
744 F.2d at
at

10).

of claims and

See Spiegel,
___ _______

Here,

the

since the

effect of
be to

assets.

district

The

the

(citing Pahlavi,
_______

are not

observed that

cause the other counts

the

satisfaction of

deplete the

contextual analysis.

claims.

context of

843 F.2d at 43

district court

judgment would

defendants

the overall

considered

904 n.5, and quoting Curtiss-Wright Corp., 446 U.S.

_____________________

partial summary judgment would

moot,

the trial judge

court

to become

the Count

Muratore Defendants

was

explicitly

grant of

III

of their

referring

to a

The district judge found that the assets of

sufficient

Thus, we hold

to

satisfy

any

further

that the second Rule 54(b)

money

criterion was

met when the district judge contemplated his action pertaining to

Count

III with a

view to the

other five

counts and not

in an

abstract or myopic fashion.

2.
2.

Equities
Equities
________
Moving

to the

heart

of

this

analysis,

we

examine

whether the trial judge abused his discretion in determining that

there was

"no just reason for delay," Fed.

light

the

of

reductions

in

futility
the amount

of

the
of

R. Civ. P. 54(b), in

defendants'

the debt

and

claims

regarding

the time-sensitive

position of the Trustee and debenture holders.11

____________________

11An additional requirement for a proper certification is

that the district judge must have made an "express direction for
the entry of judgment." Fed. R. Civ. P. 54(b). This requirement
was obviously met by the judge's oral and written directions.
-1919

In the usual case, if there is a possibility of a later

setoff

of a

would

money debt,

be improper

result which

Rule 54(b)

because of

would occur

the

certification of
inefficient and

if one party

the debt

inequitable

were allowed

to collect

money which may have to

be paid back to the other party when the

remaining litigation is

completed.

However, that is
the Muratore
law.

Pahlavi, 744
_______

not the case here.

Defendants' debt

F.2d at

No setoff or

could be allowed

904.

reduction of

as a

matter of

The claimed reductions relating to the transferred property

could

not be

applied

to reduce

the money

allegedly owed by Columbus Mortgage

debt.

The

amount

for wages and rent cannot be

setoff because the fiduciary relationship between the two parties

renders
situation

the debts
where

non-mutual.
the

Muratore

Here

then, we

Defendants

will

do

not face
pay

Columbus

Mortgage only to have Columbus Mortgage return the money when the
remaining
will

claims are decided.

have to

join

Rather, the

the other

unsecured

through the Bankruptcy Court in

Muratore Defendants

creditors and

proceed

an attempt to recover any amount

allegedly owed by Columbus Mortgage.

The claimed setoffs present

no just reason for delay.

The

district

court

determined

that certification

proper because the Trustee and debenture holders

with

the

postponement of

exercising its discretion

time

any

appeal.

in the

would be harmed

The trial

Rule 54(b)

was

court,

context, may

in

take

and value into consideration in finding delay unreasonable,

particularly

in

case

of failure

to

meet

basic

fiduciary

-2020

responsibilities.

Cf.
___

(consideration of

time-value

economic preference for

Curtiss-Wright
Corp.,
______________________
of

money).

While

hardship resulting

particular

question

from
may

delaying

justify

U.S.

is

an

there

all claims in a particular

to the appeal stage together, a demonstration

or

446

case to move

of clear injustice

final

certification.

judgment
Since

on

the

district court
criteria in a

in the

instant case

considered the

reasonable and coherent manner,

appropriate

"we conclude that

[the court] did not abuse its discretion . . . ."

Curtiss-Wright
______________

Corp., 446 U.S. at 12; see Spiegel, 843 F.2d 38; see also Pierce
_____
___ _______
_________ ______
v. Underwood, 487
_____________

U.S.

552, 562

reason for delay."

Fed. R. Civ. P. 54(b).

-2121

(1988).

There was

"no just

IV.
IV.
Conclusion
Conclusion
__________
We

hold that there was

no genuine dispute of material

fact concerning the district court's calculation of the debt owed

by the Muratore Defendants
in the amount

to Columbus Mortgage and its

of $2,146,034.24.

Fed.

R. Civ. P.

Trustee

56(c).

The

attempt to satisfy the debt through a transfer of real estate was

unavailing because there is no evidence of an arrangement between

the parties whereby real estate conveyances were to be considered

payments on
funds

the outstanding debt.

related to

property

the

itself was

No reduction of the

properties can
not a repayment

Muratore Defendants.

Because

be

debt by

granted, because

for the loans

defendants created

the

made to the
the loans

in

violation of the fiduciary duty

owed to the plaintiff, no setoff

for

by

other

alleged

debts owed

available.

Furthermore,

incorrectly

applied to the

and

therefore the

correct.
to

sum

the cash

plaintiff
payments

to defendants
on the

principal rather than

calculated

by

were

the interest,

the district

court

was

We have examined the record in the light most favorable

defendants, but we are

unwilling to go

further and take the

leaps of faith suggested by the Muratore Defendants.

hold

debt

is

that entry of final judgment

Finally, we

on Count III pursuant to Rule

54(b) was well within the sound discretion of the district court.

Fed.

R.

Civ.

P. 54(b).

We,

therefore,

court's summary judgment on Count III.

-2222

affirm the
affirm
______

district