Harley-Davidson Credit Corp. v. Galvin

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [15-1157]

Case: 15-1157

Document: 00116928078

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Date Filed: 12/08/2015

Entry ID: 5959660

United States Court of Appeals
For the First Circuit
No. 15-1157
HARLEY-DAVIDSON CREDIT CORP.,
Plaintiff, Appellee,
v.
MARK B. GALVIN,
Defendant, Appellant,
RASAIR, LLC,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]

Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.

Timothy Chevalier, with whom McCandless & Nicholson, PLLC,
was on brief, for appellant.
Mark W. Thompson, with whom Wong Fleming was on brief, for
appellee.

December 8, 2015

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LYNCH, Circuit Judge.

Date Filed: 12/08/2015

Entry ID: 5959660

Under the terms of a security

agreement assigned to it, Harley-Davidson Credit Corp. ("HarleyDavidson") seeks to collect $108,681.50 from Mark B. Galvin.
Galvin is the guarantor of a defaulted promissory note on a loan
secured by an interest in a Cessna 421C aircraft ("the Aircraft").
The suit is for the deficiency balance that remained due after
Harley-Davidson repossessed and sold the Aircraft through a thirdparty dealer for $155,000.00.
Galvin disputes the extent of his liability on the
grounds that Harley-Davidson's disposition of the Aircraft was not
"commercially reasonable," a requirement set forth in the security
agreement and Nevada commercial law, which the parties had selected
to govern their contract.
On a motion for summary judgment, the district court
held that there was no dispute of material fact that the sale was
"commercially reasonable" and entered partial summary judgment in
favor of Harley-Davidson, denying only its request for attorney's
fees. Galvin filed a motion for reconsideration, which was denied.
The court later granted a separate motion by Harley-Davidson for
attorney's fees. Galvin appeals from the entry of summary judgment
and the denial of his motion to reconsider.

We agree with Galvin

that a genuine dispute of material fact exists as to whether the
sale was "commercially reasonable."

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We reverse and remand.

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I.
On review of summary judgment, we recite the facts in
the light most favorable to the non-moving party and "draw all
reasonable inferences in his favor."
F.3d 99, 104 (1st Cir. 2015).

Ray v. Ropes & Gray LLP, 799

In April 2008, Eaglemark Savings

Bank ("Eaglemark") loaned RASair, a New Hampshire LLC that managed
and operated private aircrafts, $250,000 for the purchase of a
Cessna

421C

Aircraft,

in

exchange

for

an

"Aircraft

Secured

Promissory Note" ("the Note") for the full amount of the loan and
an

"Aircraft

Security

Agreement"

("the

Agreement")

Eaglemark a first priority interest in the Aircraft.

giving

Mark Galvin,

a pilot and the owner of RASair, personally guaranteed payment of
the loan.

Eaglemark assigned the Note and the Agreement (together

"the Loan Documents") to Harley-Davidson.
More

than

two

defaulted on the Note.

years

later,

in

August

2010,

RASair

Exercising its right under the Loan

Documents to sell the Aircraft in order to reduce the balance owed,
Harley-Davidson arranged for Specialty Aircraft Services, Inc.
("Specialty"), a dealer specializing in the sale of repossessed
aircraft, to help.

William O'Brien communicated with Galvin on

behalf of Specialty.
On August 24, 2010, O'Brien wrote in an email responding
to

Galvin's

question

about

a

potential

sale

price

that,

"[d]epending on the actual paint and boot condition, we will
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advertise around 225-230 [thousand] / Expect 180-200 [thousand]
within 90 days."

In that email, O'Brien then asked Galvin about

the Aircraft's annual inspection.

Galvin responded that the plane

would need a "fresh" inspection, elaborated on the Aircraft's
condition, and stated, "[e]verything else good."
Despite Specialty's request, Galvin did not deliver the
plane to Specialty in 2010.

In January 2011, Galvin emailed

O'Brien to tell him that a mechanic had identified damage to the
plane's rudder caused by exposure to "heavy winds," which had
rendered the Aircraft unmovable.
Mark

Strassel,

Davidson,

and

Director
explained

of

In March 2011, Galvin emailed

Operations,

that,

in

Aircraft,

coordinating

at

the

Harleyrudder's

repairs, Galvin had looked into having a Cessna dealership, Maine
Aviation, assume responsibility for the sale to see if it "made a
better situation," but that "[he didn't] see any advantage to them
as a broker over your guy in Florida," referring to O'Brien.

On

September 6, 2011, Harley-Davidson repossessed the Aircraft and
moved it to Florida and into Specialty's custody.
On September 7, 2011, Strassel informed Galvin that one
of the plane's logbooks was missing.

Galvin testified that he

immediately "sent it overnight via UPS, insured for $5,000., [sic]
directly

to

Mr.

O'Brien

per

instructions

received

from

Mr.

Strassel." The parties agree that a missing logbook would decrease
the plane's value.
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Galvin testified that when he called Specialty on behalf
of a potential buyer on November 4, 2011, he learned that while in
Specialty's

possession,

the

Aircraft

equipment from its audio panel taken.

had

been

vandalized

and

Galvin also testified that

when he then tried to locate advertising materials related to the
Aircraft on Specialty's website and "Controller," a prominent
aircraft sales website where aircraft are listed for sale, he found
none.

Galvin emailed O'Brien, who responded that Specialty was

"looking for bids on the aircraft," but that the plane needed "some
exh[aust]

work,

the

autopilot

is

inop[erable]

pressurization is only 3.0 differential."

and

the

O'Brien instructed

Galvin to have the buyer call him and said the plane was in fact
listed

on

Controller.

communications

with

Galvin

Specialty

and

testified
O'Brien,

that
he

after

his

"dropped

the

potential buyer."
On

November

30,

2011,

Harley-Davidson

executed

a

purchase agreement for the plane with an individual buyer for
$155,000.

According to the purchase agreement, the Aircraft was

sold in an "as is" condition, and the buyer waived any warranty
with respect to the plane's "airworthiness."

In the agreement,

Harley-Davidson

missing

promised

to

replace

the

avionics

components, "a Garmin 530, Garmin 340 and Garmin 327," no later
than December 5, 2011.

An invoice for the avionics as well as

additional repairs is dated December 9, 2011, the same as the
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purchase agreement's stated closing date. Following the sale,
Harley-Davidson calculated the outstanding debt, deducted the
costs of repairs to the audio panel, and sent Galvin a letter
requesting $108,681.50.1

Galvin did not pay.
II.

On October 5, 2012, Harley-Davidson filed a breach of
contract

action

against

Galvin

and

RASair

to

collect

the

$108,681.50 deficiency in New Hampshire district court, pursuant
to 28 U.S.C. § 1332(a) diversity jurisdiction.
The district court entered default judgment against
RASair on March 12, 2013.

On June 5, 2013, Harley-Davidson moved

for summary judgment against Galvin, Fed. R. Civ. P. 56, which the
court denied without prejudice.
discovery,
judgment.

Harley-Davidson

On May 23, 2014, after further

renewed

its

motion

for

summary

Galvin opposed the motion on the grounds that Harley-

Davidson failed to comply with the Loan Documents and a provision
of the Nevada Commercial Code, Nev. Rev. Stat. Ann. § 104.9610,

1

The
district
court
explained
Harley-Davidson's
calculations: "The remaining balance was determined as follows in
accordance with paragraph ten of the Aircraft Security Agreement:
At the time of the sale, the total amount due to Harley-Davidson
from RASair was $261,681.50, which included $243,162.98 owed under
the Loan Documents, $7,750 for a Repossession/Broker Fee, $375 in
Escrow Fees, and $12,393.52 in Aircraft Repairs, Storage, and
Maintenance. The Aircraft was sold for $155,000, which resulted
in a remaining balance of $108,681.50."
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requiring disposition of collateral after a debtor's default to be
"commercially reasonable."2
Under Nevada commercial law, which follows the Uniform
Commercial

Code

("UCC"),

one

method

of

demonstrating

that

a

disposition was "commercially reasonable" is to show that the
disposition

was

conducted

"in

conformity

with

reasonable

commercial practices among dealers in the type of property that
was

the

subject

of

the

disposition."

Nev.

Rev.

Stat.

Ann.

§ 104.9627(2)(c); see U.C.C. § 9-627 (2000).
On September 4, 2014, the district court granted partial
summary judgment for Harley-Davidson, finding that Galvin had not
raised a genuine issue of material fact as to the commercial
reasonableness of the sale.

Stating that "selling repossessed

collateral through a dealer, if such sale is 'fairly conducted, is
recognized as commercially reasonable,'" Harley-Davidson Credit
Corp. v. Galvin, No. 12-cv-374, 2014 WL 4384632, at *3 (D.N.H.
Sept. 4, 2014) (quoting Jones v. Bank of Nev., 535 P.2d 1279, 1282
(Nev. 1975)), the district court credited that Harley-Davidson had
employed a recognized dealer of repossessed aircraft.

2

Although

Nevada Revised Statutes § 104.9610(2) provides as
follows: "Every aspect of a disposition of collateral, including
the method, manner, time, place, and other terms, must be
commercially reasonable.
If commercially reasonable, a secured
party may dispose of collateral by public or private proceedings,
by one or more contracts, as a unit or in parcels, and at any time
and place and on any terms."
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not expressly stating so, the district court appears to have relied
on that finding in determining that Harley-Davidson satisfied its
initial

burden

at

summary

judgment

to

show

commercial

reasonableness, such that the district court, citing Colonial Pac.
Leasing Corp. v. N & N Partners, LLC, 981 F. Supp. 2d 1345, 134950 n.1 (N.D. Ga. 2013), shifted the burden of proof to Galvin to
raise a genuine issue of material fact.

The district court

rejected Galvin's arguments, inter alia, that Specialty's response
to the vandalism of the Aircraft led to a diminished sales price
and was commercially unreasonable.

The district court held that,

"Galvin has raised no genuine issues of material fact concerning
the commercial reasonableness of the disposition of the Aircraft."
Harley-Davidson Credit Corp., 2014 WL 4384632, at *7. Galvin filed
a motion for reconsideration, which was denied on December 15,
2014.

This appeal followed.
III.
We review entry of summary judgment de novo, Ray, 799

F.3d at 112, and denial of a motion for reconsideration for abuse
of discretion, Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930
(1st Cir. 2014).
We hold that the district court's analysis of HarleyDavidson's motion for summary judgment prematurely shifted the
burden of proof onto Galvin.

Evaluating the record under the

correct standard, we find that a genuine dispute of material fact
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exists regarding whether Specialty's handling of the damage to the
Aircraft caused by the vandalism that occurred while in its custody
rendered

Harley

Davidson's

commercially unreasonable.

disposition

of

the

Aircraft

For the reasons explained below, we

reverse the district court's judgment and remand.
A.

Burden of Proof
Summary judgment is proper "if the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56.

When the movant bears the burden of proof at trial, he must
demonstrate every element of his case such that "no reasonable
trier

of

fact

could

find

other

than

for

[him]."

Lopez

v.

Corporación Azucarera de P.R., 938 F.2d 1510, 1516 (1st Cir. 1991)
(quoting Paul v. Monts, 906 F.2d 1468, 1474 (10th Cir. 1990) (per
curiam)).

If he does so, the burden shifts to the nonmovant to

establish that a genuine material dispute exists. See id. at 1517.
The district court and the parties all agree that Nevada
Revised

Statutes

§

104.9610(2)

places

the

burden

on

Harley-

Davidson to show at trial that the sale of the Aircraft was
"commercially reasonable," and so we assume without deciding that
this interpretation of Nevada law is correct.

As Harley-Davidson

is the party moving for summary judgment and the party who bears
the burden of proof on the issue of commercial reasonableness at
trial,

Harley-Davidson

bears

the
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burden

of

proof

at

summary

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judgment to show that no reasonable trier of fact could find other
than that the sale was "commercially reasonable."

See Lopez, 938

F.2d at 1516.
The district court prematurely shifted the burden of
proof onto Galvin.

Under Nevada law, a creditor may demonstrate

that a sale through a dealer was "commercially reasonable" by
showing that the sale was conducted "in conformity with reasonable
commercial practices among dealers in the type of property that
was

the

subject

§ 104.9627(2)(c).

of

the

disposition."

Nev.

Rev.

Stat.

Ann.

The district court and Harley-Davidson point to

Jones v. Bank of Nevada, 535 P.2d 1279 (Nev. 1975), to suggest
that using a dealer alone meets this requirement.
Reliance on Jones is misplaced.

In reviewing a sale of

collateral, the Jones court explained the rationale of a trial
court by noting the trial court's quoting of a comment to a former
provision of the UCC.

Id. at 1282.

That comment, no longer

existent in the UCC, stated that a sale through a dealer, if
"fairly conducted, is recognized as commercially reasonable," id.
(quoting UCC § 9-507, cmt.).
dealer

alone

qualifies

a

But Jones did not hold that using a
sale

as

"commercially

regardless of whether the sale was "fairly conducted."

reasonable"
Indeed, it

rather plainly states the opposite: use of a dealer must also be
"fairly conducted."

Id. at 1282.

Harley-Davidson points to no

Nevada authorities supporting the district court's holding that a
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creditor's

use

of

a

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dealer

Date Filed: 12/08/2015

alone

demonstrates

Entry ID: 5959660

commercial

reasonableness, and we find none.3
The district court erred in shifting the burden of proof
to Galvin.

Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)

(holding that when the nonmoving party bears the burden of proof
at trial, the moving party may obtain summary judgment by showing
that "there is an absence of evidence to support the non-moving
party's case").
B.

Genuine Dispute of Material Fact
Our task is to determine, viewing the record in the light

most favorable to Galvin, whether any reasonable trier of fact
could find other than that the sale was "commercially reasonable"
within the meaning of Nevada Revised Statutes § 104.9610.
Lopez, 938 F.2d at 1516.

See

We conclude that there is a genuine

dispute of material fact, such that a reasonable trier of fact
could find against Harley-Davidson.

3

We need not and do not decide the weight Nevada law gives
to a creditor's use of a dealer in most circumstances. We note
that even were we to accept Harley-Davidson's suggestion that,
once a dealer is used, it is the debtor's burden to show that the
sale "was in some manner atypical," here, there is more than enough
to find that the circumstances were "atypical." Significant damage
occurred to the plane because of vandalism while in the dealer's
custody; the plane was rendered not airworthy as a result. Under
such conditions, even assuming use of a dealer were as significant
as Harley-Davidson contends, it is not enough for the creditor to
point to the mere fact that a dealer was used, especially where
the governing statute requires that it show "[e]very aspect of a
disposition" was "commercially reasonable." Nev. Rev. Stat. Ann.
§ 104.9610(2).
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Harley-Davidson asserts that the sale of the Aircraft
was "commercially reasonable" because of its use of a dealer.
have already rejected that fact alone as insufficient.

We

Rather,

Harley-Davidson must show that in these particular circumstances,
where the repossessed collateral was vandalized while in the
dealer's

care

such

that

the

plane

could

not

be

flown,

that

Specialty's disposition of the Aircraft was "in conformity with
reasonable commercial practices among dealers in the type of
property that was the subject of the disposition." Nev. Rev. Stat.
Ann. § 104.9627(2)(c); see Royal W. Airways, Inc. v. Valley Bank
of Nev., 747 P.2d 895, 897 (Nev. 1987) (per curiam) (holding that
"neglect of the [repossessed] airplane and the change in its market
value" while in the creditor's possession failed to satisfy the
creditor's duty to "dispose" of the collateral and remanding to
determine whether the conduct was commercially unreasonable); Iama
Corp. v. Wham, 669 P.2d 1076, 1079 (Nev. 1983) (scrutinizing
actions of creditor while in possession of collateral).
Harley-Davidson also contends that Galvin's consent to
using Specialty as a dealer and alleged "participation" in the
sale rendered the sale "commercially reasonable."

Harley-Davidson

has pointed to no Nevada authorities to support this interpretation
of Nevada law.

Rather, relying on Piper Acceptance Corp. v.

Yarbrough, 702 F.2d 733 (8th Cir. 1983) (per curiam) (applying
Arkansas law), a case in which a debtor's lawyer wrote to a
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creditor, "go ahead and sell the airplane without our having
checked it further," id. at 734, Harley-Davidson suggests that
express authorization "arguably makes the question of commercial
reasonableness of the sale immaterial," id. at 735.

To begin, the

court in Piper did not hold that consent to sale through a dealer
renders a sale "commercially reasonable."

But in any event, this

case is distinguishable, as there is no evidence on the record
that Specialty ever informed Galvin of the November 30 sale, much
less that Galvin gave his "express authorization."4
On these arguments, a reasonable trier of fact could
decide against Harley-Davidson.

Furthermore, we agree with Galvin

that there is a genuine dispute of material fact as to whether
Specialty's handling of the sale after the vandalism fell below
the

standard

dealers.

of

reasonable

commercial

among

such

Galvin contends the Aircraft's missing avionics would

likely have turned away buyers.

4

practices

See Levers v. Rio King Land &

We are also not persuaded by Harley-Davidson's citation
to Ralston-Purina Co. v. Bertie, 541 F.2d 1363 (9th Cir. 1976)
(applying Idaho law).
In Bertie, a chicken farmer's poultry
inventory was repossessed and sold by Ralston-Purina Company for
a supply-feed debt secured by the inventory. Id. at 1364-65. The
trial court made an evidentiary ruling disallowing Bertie's
testimony as an expert for his defense on the basis that he
conceded he was "well informed" about and had "participated in the
disposition of the live chickens," yet "he and his wife had not
attempted to enjoin or restrict" the disposition, despite having
the ability to do so under Idaho law. Id. at 1366. The appeals
court was listing the evidentiary basis for the trial court's
application of Idaho estoppel law -- the case is not on point.
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Inv. Co., 560 P.2d 917, 920 (Nev. 1977) (considering number of
potential buyers); Jones, 535 P.2d at 1281 (considering seller's
efforts to attract buyers).

The district court found Galvin had

not properly supported that contention because he "simply points
to his own affidavit."

While self-serving affidavits that do not

"contain adequate specific factual information based on personal
knowledge" are insufficient to defeat summary judgment, Spratt v.
R.I. Dep't of Corr., 482 F.3d 33, 39 (1st Cir. 2007) (quoting
Quinones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006)), Galvin's
personal knowledge is backed up by thirty years of experience as
a private pilot, having purchased and sold at least seven aircraft,
and having owned and operated three aviation-related businesses.
He

testified,

"[t]he

missing

avionics

and

resulting

questionability to the history of the aircraft, would turn away
all but those who . . . 'bottom fish' for bargains," resulting in
lower offers.

And beyond his affidavit, the record also contains

the purchase agreement between Specialty and the individual buyer.
Replacement of the avionics was specifically written into that
agreement, which strongly indicates that having the avionics was
important, as the buyer insisted upon their replacement as a
condition of the sale.
We note that although O'Brien's November 5, 2011, email
states that Specialty was "looking for bids on the aircraft," that
evidence does not show buyers were as interested in the plane as
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they would have been had the vandalism been corrected prior to
marketing of the plane or had the vandalism been prevented in the
first place.

The fact that "Specialty encouraged Galvin to have

an allegedly interested party contact it about purchasing the
Aircraft," does not alter our conclusion that, in light of all the
evidence, viewed most favorably to Galvin, a reasonable trier of
fact could find Specialty's actions dissuaded buyers.
Galvin also contends that Specialty sold the Aircraft
for

an

"unreasonably

vandalism.5

lower

sales

price"

as

a

result

of

the

Under Nevada law, "[a]lthough the price obtained at

the sale is not the sole determinative factor, nevertheless, it is
one of the relevant factors in determining whether the sale was
commercially reasonable."

Levers, 560 P.2d at 920; see also FDIC

v. Moore Pharm., Inc., No. 2:12-cv-00067, 2013 WL 1195636, at *3
(D.

Nev.

Mar.

22,

2013)

("The

conditions

of

a

commercially

reasonable sale should reflect a calculated effort to promote a
sales price that is equitable to both the debtor and the secured
creditor." (quoting Dennison v. Allen Grp. Leasing Corp., 871 P.2d
288,

291

(Nev.

1994)

(per

curiam))).

Galvin

points

to

the

allegedly low invoice prices Harley-Davidson submitted as evidence

5

We need not decide how wide a discrepancy in price and
value of collateral must be to trigger "close scrutiny" under
Nevada law, Levers, 560 P.2d at 920, as the vandalism alone gives
us reason enough to scrutinize the sale. And in any case, Nevada
Revised Statutes § 104.9610(2) requires "[e]very aspect of a
disposition of collateral" to be "commercially reasonable."
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that the Aircraft was not properly repaired, and that if not
properly repaired, it was likely sold as not airworthy and would
have obtained a lower price.

Although Harley-Davidson has argued

the plane was in poor condition and damaged when delivered to
Specialty, it has not disputed Galvin's testimony that the plane
was nonetheless airworthy before the vandalism.

The November 30,

2011, purchase agreement, however, states that the plane is being
sold "as is" and expressly disclaims its "airworthiness."

Given

the facts on the record, there is a genuine dispute of material
fact regarding whether the vandalism's effect on the plane's
airworthiness

may

have

affected

the

price

obtained.

This

conclusion is not altered by damage that already existed at the
time of repossession.

Simply put, a fact-finder could reasonably

conclude that an airworthy craft would attract more interest and
a higher price than would a non-airworthy craft that had been
vandalized, even if the seller promised to repair the known damage.
With the latter craft, the buyer may wonder what else happened to
the plane and has no chance to test it out.6
Harley-Davidson attempts to show that "Galvin did not
expect the Aircraft to sell for a significantly higher price than
it did," pointing to an email exchange between O'Brien and Galvin

6

We do not reach Galvin's arguments that the sale was not
an arm's-length transaction or that the plane was not sold in its
"present condition," as they were not raised below.
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in which O'Brien informed Galvin, "[e]xpect 180-200 within 90
days."

In reply, Galvin responded to O'Brien's other remarks and

then affirmed, "[e]verything else good."
that he made that statement.

Galvin has not disputed

However, he has not admitted that

stating "[e]verything else good," referred to the potential price
and not to the plane's condition being otherwise good.

Galvin

also points to Bluebook values for the make and model of his plane
showing average retail values of approximately $269,000.

It is

possible that a trier of fact may determine that Galvin should not
receive $269,000, and instead should receive at most $200,000, as
the maximum amount he expected.

However, we cannot say that no

reasonable trier of fact would find he should have received more
than $155,000, and that at least some of the difference between
the expected and received value was due to Specialty's handling of
the vandalism.
Based on these facts, we find Harley-Davidson has failed
to show that no reasonable trier of fact could find other than
that the sale was "commercially reasonable."
should have been denied.

Summary judgment

That said, we note that given the amount

in dispute, we see no reason why the parties should not be able to
resolve this matter without further costly litigation.
We need not reach Galvin's motion for reconsideration.
IV.
For the reasons stated, we reverse and remand.
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