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[NOT FOR PUBLICATION]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,
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Coffin, Senior Circuit Judge,
____________________
and Keeton*, District Judge.
______________
____________________
Edmund J. Waters, Jr. for appellants.

_____________________
Richard V. Wiebusch with whom Jude A. Curtis and
____________________
________________
Bongiorno were on brief for appellee.
_________

Michael
________

____________________
____________________

____________________
*Of the District of Massachusetts, sitting by designation.

COFFIN,
question

of

limitations

Senior Circuit Judge.

______________________
the

proper

to

the clock

appeal

commence

period in an action challenging

discharge a mortgage.
started

time

This

the

raises

the

statute

of

a bank's failure to

Plaintiffs contend that the district court

prematurely, and

thus wrongly

dismissed the

case as time-barred.
The facts, drawn from the complaint, are as follows.
summer

of

1989, plaintiffs

process of building
land

they owned

Company, the

Kevin

and

a house on Lot 10 of

in Deerfield, New

Linda

Price began

the

a subdivided parcel of

Hampshire.

predecessor in interest to

In the

Arlington Trust

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
they

10.

The Prices allege that, before signing with Rockingham,

elicited

discharge

an

oral promise

from

its mortgage on Lot 10

Arlington

that it

would

in exchange for $30,000 of the

$100,000 Rockingham loan.

The
1989.

plaintiffs paid
Sometime

the

$30,000 to

thereafter, as

Arlington in

result

of

October

a title

search

conducted in connection with the sale of the house on Lot 10, the
Prices learned that the
hired an attorney, who
mortgage

on

mortgage had not been discharged.

made multiple demands for release

Shawmut, which

assets and liabilities.

They

On

by

then

had acquired

of the

Arlington's

both February 14 and March 6,

1990,

Shawmut, in writing, refused to do so.

Further discussion
subordinate
mortgage.

its

ensued and, in April,

mortgage

to

Rockingham's

Shawmut agreed to
construction

Rockingham foreclosed on Lot 10 in June 1990.

loan

Shawmut

foreclosed on the remainder of the property about a year later.

The Prices filed this lawsuit

various

claims arising

mortgage

discharge.

holding that
N.H.

Rev.

"learned
had

on March 23, 1993,

from the
The district

bank's failure to

provide the

court dismissed

the action,

the three-year statute of

Stat. Ann.

asserting

508:4 began

limitations contained in
to

run

when the

Prices

that there was an encumbrance on Lot 10 which Arlington

wrongfully failed

occurred, according

to remove."

to the

The

court found

allegations in the

that this

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

assert that the injury

only when
that time,
position

to begin the

occurred, and the statute

Rockingham foreclosed on
plaintiffs maintain,
and issued

limitations period.

began running,

Lot 10 in June

Shawmut could have

the discharge that

They

would have

1990.

Until

changed its

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

receipt of

promise

the $30,000.*

to discharge
Unquestionably,

the

Lot 10

lien

upon

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
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the Prices and

release
their
the

Arlington was breached

Lot 10 from the

payment.

when Arlington failed

mortgage shortly after

The breach

Prices' title to Lot

had an immediate

to

the Prices made

impact: it clouded

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

subordination of

its

the negotiations

in late 1989

the

mortgage and

the

subsequent

foreclosures.
During
Prices

undoubtedly hoped

grant the release.

That

that

they could

the

533 A.2d

did not

to

occur

June, however, does not eradicate

as soon as Arlington failed

mortgage upon receipt of

John Deere,
___________

1990, the

persuade Shawmut

the irrevocable injury

until Rockingham foreclosed in

the injury that occurred

and early

the Prices' payment.

375, 376-78,

130

N.H. 18,

to release

See Rowe v.
___ ____

21-23 (1987)

(limitations period commences at time of initial injury, not at a

later

date

injuries).
as an injury
it

has not

when

plaintiff

learned

the

full

extent

of

his

Plaintiffs' theory comes down to saying that, so long

remains reversible through
accrued.

Such

would

underlying limitations statutes.

successful negotiation,

indeed defeat

the

policies

Moreover, even
the
which

Prices still

when their lack of

had more

they could have

than two

success became apparent,

and one-half

filed a timely lawsuit.

years during

As the district

____________________
mortgage.
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court ruled, "[t]heir

their present claims."
Affirmed.
________

failure to do so . . .

serves as a bar to

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