Filed: March 2, 2015
Opinion by: Ellen Lipton Hollander
Holdings: The meaning of a contractual provision is not discerned by reading it in isolation, but by recognizing its relation to the other terms of the complete contractual relationship.
Extrinsic evidence indicating a party is entitled to proceeds of a foreclosure on a first out basis may only be considered if the underlying contract is ambiguous.
Facts: Nearly two years after a loan was made, defendant purchased a 25% interest in the loan pursuant to a participation agreement. The loan went into and remained in default despite various efforts to cure the default. Plaintiff initiated a foreclosure proceeding. The resulting foreclosure sale resulted in a loss on the loan.
The parties disagreed as to how the foreclosure proceeds should be disbursed under the participation agreement. Section 9(b) of the agreement provided that plaintiff “shall promptly remit to [defendant] its percentage interest first, as hereinabove specified, of all net proceeds received by [plaintiff] as a consequence of such foreclosure proceeding.” The agreement did not define percentage interest. Section 1 of the agreement provided that defendant’s “interest in the loan, expressed as a percentage, is 25.00%.”
Analysis: Instead of receiving 25% of the foreclosure proceeds, defendant argued it was entitled to “its full 25% interest in the loan first, before the remaining foreclosure proceeds are distributed” because the terms pro rata and ratable were absent from Section 9(b). The Court viewed defendant’s interpretation as being at odds with the allocation of losses section of the agreement, which required ratable allocation of any losses on the loan. The Court also noted that defendant, in selecting an option for priority of payments, chose “pro rata” rather than “first out” or “100%.” Citing Atlantic Contracting & Material Co. Inc. v. Ulico Cas. Co., the Court stated “the meaning of a provision is not discerned by reading it in isolation, but by recognizing its relation to the other terms of complete contractual relationship.”
Defendant also argued that the use of the word “first” in section 9(b) shifted a greater risk to plaintiff in the event of a default and subsequent foreclosure sale. Plaintiff argued the word first refers to defendant receiving its 25% ratable interest, not defendant being remitted its entire investment. The Court agreed and stated that contractual terms must be read by recognizing their relation to the other contractual terms.
The Court also stated that defendant’s interpretation would effectively convert defendant’s participating investment into a loan, which is generally inconsistent with a participation agreement. The Court then reviewed several cases and factors to determine whether a transaction involves a participation interest or a loan.
The Court declined to introduce extrinsic evidence, in the form of a letter attached to an e-mail, indicating defendant was entitled to proceeds on a first out basis. The Court held that extrinsic evidence may only be considered if a contract is ambiguous and such ambiguity does not exist “simply because, in litigation, the parties offer different meanings to the language.”