UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Avarden Investments, LLC

v. Civil No. 16-cv-014-LM Opinion No.

Deutsche Bank National Trust Company

O R D E R

Avarden Investments, LLC brings suit against Deutsche Bank

National Trust Company, after Deutsche Bank terminated their

real estate purchase agreement. Avarden alleges that Deutsche

Bank wrongfully terminated the agreement on the eve of the

closing. Deutsche Bank moves to dismiss the lawsuit, arguing

that the parties’ agreement expressly permits the termination

and limits Avarden’s relief to the return of its security

deposit, which both parties agree Deutsche Bank returned to

Avarden shortly following the termination. Avarden objects.

Avarden has also moved to amend its complaint. Deutsche

Bank objects, arguing that the proposed amended complaint is

futile for the same reasons presented in its motion to dismiss.

Procedural Background

Avarden, proceeding pro se, brought suit in state court

against Deutsche Bank, alleging claims for breach of contract,

breach of the implied covenant of good faith and fair dealing, violation of New Hampshire’s Consumer Protection Act, and fraud.

Deutsche Bank removed the suit to this court and moved to

dismiss Avarden’s suit for failure to state a claim. Avarden

then obtained counsel and through that counsel filed an

objection to Deutsche Bank’s motion to dismiss. Avarden’s

objection also requested the opportunity to amend its complaint.

In a procedural order, the court granted Avarden leave to

move to amend its complaint and held Deutsche Bank’s motion to

dismiss in abeyance, pending the outcome of Avarden’s

anticipated motion to amend. Doc. no. 17. In its order, the

court observed that Avarden’s request to amend was procedurally

improper under the local rules of this district. The court

recognized the request, however, based on equitable factors,

including that Avarden was pro se when it filed its complaint.

The court also required that “Avarden’s motion to amend shall

comply with the local rules of this district.” Doc. no. 17 at

2.

In June 2016, Avarden moved to amend its complaint. Doc.

no. 18. The proposed amended complaint, which Avarden has filed

with its motion, asserts the same claims as those contained in

Avarden’s original complaint. Deutsche Bank objected to the

motion to amend, and Avarden filed a reply to that objection.

2 Discussion

I. Motion to Amend

Avarden moves to amend its complaint to include “specific

details and the particular circumstances constituting the fraud

claim.” Doc. no. 18. Deutsche Bank objects. In support,

Deutsche Bank contends that Avarden’s motion is futile and does

not comply with the local rules of this district.

In response to a motion to amend a complaint, “[t]he court

should freely give leave when justice so requires.” Fed. R. Civ.

P. 15(a)(2). To decide if justice requires leave to amend, the

court considers all of the circumstances to “balance []

pertinent considerations.” Palmer v. Champion Mortg.,

(1st Cir. 2006). Generally, the motion should be

allowed in the absence of “any apparent or declared reason—such

as undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, [or] futility of

amendment.” Foman v. Davis,

(1962).

An amendment is futile if it cannot survive the standard

applicable to motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Platten v. HG Bermuda Exempted Ltd.,

(1st Cir. 2006). In considering a motion under

3 Rule 12(b)(6), the court assumes the truth of the properly

pleaded facts and takes all reasonable inferences from the facts

that support the plaintiff’s claims. Mulero-Carrillo v. Roman-

Hernandez,

(1st Cir. 2015). Based on the

properly pleaded facts, the court determines whether the

plaintiff has stated “a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly,

(2007).

A. Factual Background1

Gabrielle Bilc is the former resident and mortgagor of a

property located at 95 Jenkins Road in Bedford, New Hampshire

(“the property”). In May 2011, Deutsche Bank, who had acquired

the mortgage, foreclosed on the property. Deutsche Bank then

recorded a foreclosure deed on the property. About two years

after recording that deed, Deutsche Bank offered the property

for sale at auction.

1 The facts in this section are taken from the proposed amended complaint that Avarden filed with its motion to amend, doc. no. 18-1, and the parties’ purchase agreement, which Deutsche Bank relies on in its objection to the motion to amend. Because the purchase agreement is referenced in the proposed amended complaint and forms the basis of Avarden’s claims, the court may consider it here. See Freeman v. Town of Hudson,

(1st Cir. 2013) (internal citation omitted) (courts may consider “documents central to [a] plaintiff[’s] claim” and “documents sufficiently referred to in the complaint”); see also Fed. R. Civ. P. 12(d).

4 At that auction, Avarden made the successful bid. Deutsche

Bank and Avarden then entered into a purchase agreement

governing the sale of the property. Bilc, serving as Avarden’s

manager,2 signed the purchase agreement on Avarden’s behalf on

July 1. Doc. no. 5-3 at 24. On July 24, JP Morgan Chase Bank,

acting as Deutsche Bank’s attorney-in-fact, executed the

purchase agreement and delivered the executed agreement to

Avarden. Avarden alleges that before the execution of the

purchase agreement it disclosed to Deutsche Bank that it had

agreed to lease the property to Bilc and that Deutsche Bank

approved this disclosure in mid-July.

The purchase agreement set the closing date for the sale as

July 31, 2014. In addition, pursuant to the purchase agreement,

Avarden was required to pay a $13,500 earnest money deposit,

which it did.

The purchase agreement contains three provisions that are

central to the parties’ dispute. First, the cover page of the

purchase agreement contains a provision limiting Avarden’s

2 Avarden is a limited liability company organized under the laws of New Hampshire. New Hampshire law permits a limited liability corporation to assign management responsibility of a limited liability company to a “manager.” RSA 304-C:13 (“‘Manager’ means a person who is named or designated as a manager of a limited liability company in an operating agreement.”).

5 remedy to the return of its deposit in the event of a Deutsche

Bank breach or default before the sale’s closing. That

provision provides, in pertinent part:

NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, SELLER’S LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY IN ALL CIRCUMSTANCES AND FOR ALL CLAIMS (AS THE TERM IS DEFINED IN SECTION 9 OF THIS AGRREEMENT . . . ) . . . ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE SALE OF THE PROPERTY TO BUYER, INCLUDING . . . SELLER’S BREACH OR TERMINATION OF THIS AGREEMENT . . . SHALL BE LIMITED TO NO MORE THAN . . . A RETURN OF BUYER’S EARNEST MONEY DEPOSIT IF THE SALE TO BUYER DOES NOT CLOSE . . . .

Doc. no. 5-3 at 1.3 Second, the next page of the purchase

agreement contains a provision in which Avarden agreed to

“waive[]. . . all rights to file and maintain an action against

the seller for specific performance.” Id. at 2.

Finally, Avarden and Deutsche Bank also executed a

“seller’s auction addendum” to the purchase agreement. Id. at

28. That addendum contains a termination option granting

Deutsche Bank the power to terminate the purchase agreement

under certain enumerated circumstances. One of the

3Section 9 of the purchase agreement contains a broad definition of “claims,” which includes, in part, “ANY AND ALL CLAIMS, CAUSES OF ACTION, WHETHER ADMINISTRATIVE OR JUDICIAL . . . OF ANY KIND WHATSOEVER, WHETHER KNOWN OR UNKNOWN . . . ARISING FROM OR RELATING TO THE PROPERTY.” Purchase Agreement, Doc. no. 5-3 at § 9.

6 circumstances in which Deutsche Bank can terminate the agreement

is if the buyer is the former mortgagor or is affiliated with

the former mortgagor. The termination option provides, in

pertinent part, that Deutsche Bank has:

the right, in its sole discretion, to . . . terminate the Agreement if . . . Buyer is the former mortgagor of the Property whose interest was foreclosed . . . or is related to or affiliated in any way with the former mortgagor, and Buyer has not disclosed this fact to Seller in writing prior to Seller’s acceptance of the Agreement and this Addendum.

Seller’s Addendum, Doc. no. 5-3 at § 9(i).

On July 30, a day before the sale was scheduled to close

and six days after the agreement was finalized, Deutsche Bank

informed Avarden that it was terminating the purchase agreement.

Nicole Wilson, the transaction’s closing coordinator, told Bilc

that she was terminating the agreement because she had “been

advised that you are the former foreclosed mortgagor on this

property.” Doc. no. 18-1 at ¶ 20. Wilson further requested

that Bilc “sign and return the attached termination at your

soonest convenience so that we can get your Earnest Money

deposit returned back to you.” Id.

In response, Avarden insisted that the purchase agreement

could not be terminated and that the parties should move forward

with the transaction. Despite Avarden’s position, Deutsche Bank

7 terminated the purchase agreement. Deutsche Bank returned

Avarden’s deposit after it terminated the purchase agreement.

B. Futility

Deutsche Bank contends that Avarden’s motion to amend

should be denied as futile because the facts alleged in the

amended complaint do not support viable claims. In response,

Avarden argues that the court should grant its motion because

the amended complaint presents “actionable claims.” The amended

complaint alleges four separate claims; the court discusses each

below.

1. Breach of Contract

Deutsche Bank asserts that Avarden’s proposed amended

complaint fails to state a claim for breach of contract because

the purchase agreement (1) limits Avarden’s damages to the

deposit that it already received and (2) entitles Deutsche Bank

to terminate the agreement based on Avarden’s affiliation with

Bilc. In response, Avarden contends that it has properly

alleged its breach of contract claim.

The interpretation of a contract, including whether a

contract term is ambiguous, is ultimately a question of law.

Birch Broad., Inc. v. Capitol Broad. Corp.,

(2010). When interpreting a contract, the court must “give the

8 language used by the parties its reasonable meaning, considering

the circumstances and the context in which the agreement was

negotiated, and reading the document as a whole.” In re

Liquidation of Home Ins. Co.,

(2014) (internal

quotations omitted). Absent ambiguity, however, “the parties’

intent will be determined from the plain meaning of the language

used in the contract.”

(internal quotations omitted). “The

language of a contract is ambiguous if the parties to the

contract could reasonably disagree as to the meaning of that

language.” Found. for Seacoast Health v. Hosp. Corp. of Am.,

(2013) (quoting Birch Broad.,

).

a. Limitation of Remedies

Deutsche Bank contends that Avarden’s claim for breach of

contract is implausible because it returned Avarden’s earnest

money deposit. In support, Deutsche Bank points to the remedy

limitation on the first page of the purchase agreement, which,

it contends, limits Avarden’s remedy to the return of its

earnest money deposit in the event that the sale did not close.

Avarden does not address the remedy limitation in its motion or

reply.

9 “Limitations of damages are generally enforced under New

Hampshire law.” Colonial Life Ins. Co. of Am. v. Elec. Data

Sys. Corp.,

(D.N.H. 1993); see also Shaer

Shoe Corp. v. Granite State Alarm, Inc.,

(1970).

Here, the purchase agreement provides that if the sale does not

close, Avarden’s “sole and exclusive” remedy “in all

circumstances and for all claims, . . . including Seller’s

breach or termination . . . shall be limited to” the return of

its deposit. Doc. no. 5-3 at 1. The plain and unambiguous

meaning of that language allows Deutsche Bank to terminate the

purchase agreement before closing in exchange for the return of

Avarden’s deposit. This interpretation is reasonable based on

the purchase agreement’s express terms and the short duration

between the agreement’s execution and the scheduled closing

date. Further, Avarden does not offer an alternative

interpretation of the remedy limitation that could render it

ambiguous.4

4 A similar remedies limitation provision was construed as ambiguous in Embree v. Bank of New York Mellon, No. 12-cv-462- JL,

, at *4-5 (D.N.H. Dec. 6, 2013). In Embree, the court agreed with the plaintiffs’ argument that the provision could reasonably be interpreted as limiting the seller’s liability only in circumstances where the seller’s breach was unintentional. Id. at 4. The Embree plaintiffs’ argument was based on the “unique circumstances” of that case, in which a foreclosure deed had not been filed for the property and, therefore, the seller’s ability to obtain title was in

10 Therefore, the court holds that the purchase agreement

unambiguously bars Avarden from recovering any contractual

remedies for Deutsche Bank’s pre-closing default that exceed the

return of its deposit. Because Avarden has conceded that

Deutsche Bank returned its deposit, it has not stated a

plausible claim for relief based on Deutsche Bank’s termination

of the purchase agreement.5 Accordingly, Avarden’s breach of

contract claim is futile.

b. Bilc Affiliation

Deutsche Bank also contends that it had the right to

terminate the purchase agreement when it learned that Avarden

was affiliated with Bilc. Avarden, on the other hand, contends

question when the parties negotiated the contract. Id. That situation is not present here. Further, unlike the plaintiffs in Embree, Avarden has not offered any alternative interpretation of the remedies limitation.

5 The New Hampshire Supreme Court has observed in dicta that “wanton and willful conduct intended to harm is not subject” to limitation of liability clauses. PK's Landscaping, Inc. v. New England Tel. & Tel. Co.,

(1986) (2-2 decision, per curiam) (affirming lower court’s enforcement of remedy limitations clause). Avarden, however, has alleged no facts from which the court could infer that Deutsche Bank’s conduct rose to that heightened level of culpability. See Russell Pub. Grp., Ltd. V. Brown Printing Co., 13-cv-5193-SAS,

, at *1 (S.D.N.Y. Feb. 5, 2015) (noting that intentional breach alone, without intent to harm or gross negligence, “will not render a limitation of liability clause unenforceable”).

11 that Deutsche Bank had no such right because it disclosed that

Bilc had agreed to lease the property before the auction.

Because the court has concluded that the limitation of remedies

clause prohibits Avarden’s claims, it need not address whether

Deutsche Bank was entitled to terminate the agreement based on

Avarden’s affiliation with Bilc.

2. Covenant of Good Faith and Fair Dealing

The proposed amended complaint alleges that Deutsche Bank

breached its implied duty under the purchase agreement “to

exercise good faith and fair dealing in the conduct of its

business dealings with the plaintiffs.” Doc. no. 18-1 at ¶ 42.

In response, Deutsche Bank contends that Avarden’s claim for

breach of the implied covenant of good faith and fair dealing is

futile based on the same provisions that it cited in support of

its argument against the breach of contract claim.

New Hampshire law recognizes “[i]n every agreement . . . an

implied covenant that the parties will act in good faith and

fairly with one another.” Birch Broad.,

. That

covenant encompasses three general duties of good faith relating

to: “(1) contract formation; (2) termination of at-will

employment agreements; and (3) limitation of discretion in

contractual performance.”

Avarden’s implied covenant claim

12 concerns the third category,6 “the broader function” of which

“is to prohibit behavior inconsistent with the parties’ agreed-

upon common purpose and justified expectations as well as with

common standards of decency, fairness and reasonableness.”

(internal quotations omitted).

In accord with this function, “‘the duty of good faith and

fair dealing ordinarily does not come into play in disputes’

where ‘the underlying contract plainly spells out both the

rights and duties of the parties and the consequences that will

follow from a breach of a specified right.’” Rouleau v. US

Bank, N.A., No. 14-cv-568-JL,

, at *4 (D.N.H.

Apr. 17, 2015) (quoting Milford-Bennington R. Co. v. Pan Am

Railways, Inc., No. 10-cv-00264-PB,

, at *5

(D.N.H. Dec. 16, 2011), aff'd,

(1st Cir. 2012)).

As the court discussed above, the purchase agreement

plainly sets forth a contractual scheme in which Avarden’s only

remedy in the event the sale did not close was the return of its

6 Because Avarden’s proposed amended complaint does not allege a misrepresentation during contract formation and does not concern an employment contract, the court will construe its implied covenant claim as a claim regarding Deutsche Bank’s use of discretion during contract performance. See Centronics Corp. v. Genicom Corp.,

(1989) (noting that the good faith and fair dealing duty concerning contract formation is “tantamount” to the duty “to refrain from misrepresentation and to correct subsequently discovered error”).

13 deposit. For this reason, Avarden could not have justifiably

expected that it would be entitled to the damages that it now

seeks based on Deutsche Bank’s pre-closing termination. See

Goodwin v. Hole No. 4, LLC, No. 2:06 CV 00679,

,

at *9 (D. Utah July 31, 2007) (rejecting implied covenant claim

where parties agreed to limit the buyers’ remedies to the return

of their deposit plus interest because it “would be unjustified

for the [buyers] to expect more than [that] remedy”).

Accordingly, Avarden has failed to allege a claim for breach of

the implied covenant of good faith and fair dealing based on

Deutsche Bank’s termination of the purchase agreement.

Avarden’s proposed amendment to this claim is therefore futile.

3. Consumer Protection Act Claim

The proposed amended complaint asserts a claim under New

Hampshire’s Consumer Protection Act (“CPA”), RSA Chapter 358-A.

Deutsche Bank contends that the proposed amended complaint fails

to state a claim under the CPA because Deutsche Bank is exempt

from CPA regulation and because Avarden has not alleged facts

that constitute a violation of the CPA. In response, Avarden

argues that Deutsche Bank’s claimed exemption is not applicable.

14 The CPA prohibits persons from using “any unfair method of

competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within” New Hampshire. RSA

358-A:2. Although the statute is broadly worded, “not all

conduct in the course of trade or commerce falls within its

scope.” Axenics, Inc. v. Turner Const. Co.,

(2013).7 “An ordinary breach of contract claim, for example, is

not a violation of the CPA.”

Rather, conduct falls within

the CPA’s prohibition if it “attain[s] a level of rascality that

would raise an eyebrow of someone inured to the rough and tumble

of the world of commerce.”

(internal quotations

omitted).

Avarden’s proposed amended complaint alleges that Deutsche

Bank “has committed and continues to commit acts that constitute

unfair and deceptive acts and practices.” Doc. no 18-1 at ¶ 37.

Beyond this conclusory statement, however, there are no factual

allegations that Deutsche Bank engaged in any conduct from which

this court could plausibly infer that Deutsche Bank violated the

CPA. Avarden alleges that Deutsche Bank agreed to sell it the

property and then terminated the purchase agreement before the

The CPA includes a non-exhaustive list of sixteen actions 7

that fall within its prohibition. R.S.A. 358-A:2. None of those categories is applicable here.

15 sale’s closing. That might constitute an ordinary breach of

contract claim, but it is not the type of conduct that would

“raise the eyebrow” of a person experienced in the “rough and

tumble of the world of commerce.” See Axenics,

-

76. Accordingly, Avarden’s CPA claim is futile.8

4. Fraud Claim

The fraud claim in the proposed amended complaint is based

on the allegation that Deutsche Bank “made false statements of

material fact to [Avarden] . . . ; including, but not limited

to, the defendant’s knowingly false representation that Bilc was

the purchaser of the [property].” Doc. no. 18-1 at ¶ 48.

Deutsche Bank contends that this claim is futile because Avarden

has failed to plead the elements of fraud with the required

specificity.

To prove fraud, Avarden must show that Deutsche Bank

knowingly made a false statement to it for the purpose of

inducing it to rely on that statement, that it did justifiably

rely on that statement, and that such reliance caused it

pecuniary loss. Tessier v. Rockefeller,

, 331-32

8Because Avarden has failed to allege facts stating a claim under the CPA, the court need not address whether Deutsche Bank is exempt from CPA regulation under the circumstances alleged in the proposed amended complaint.

16 (2011). Further, under Federal Rule of Civil Procedure 9(b),

Avarden is required “to plead the circumstances of fraud with

heightened specificity.” In re Genzyme Corp. Sec. Litig.,

(1st Cir. 2014). Those circumstances include “what,

specifically, was stated,” the “specific nature” of a

plaintiff’s injury, and the plaintiff’s actual reliance on the

alleged false statements. Woods v. Wells Fargo Bank, N.A.,

(1st Cir. 2013).

The only specific misrepresentation alleged in Avarden’s

proposed amended complaint is that Deutsche Bank made a false

statement to it while terminating the purchase agreement. The

proposed amended complaint, however, contains no allegations

from which this court could plausibly infer that Avarden

reasonably relied on that allegedly false statement or that any

such reliance resulted in pecuniary loss. Avarden’s proposed

amended complaint contains only a conclusory allegation that it

“reasonably and justifiably relied on [Deutsche Bank’s]

fraudulent misrepresentations to their [sic] detriment and acted

accordingly.” Doc. no. 18-1 at ¶ 50. Avarden does not allege

any specific action that it took or refrained from taking in

reliance on Deutsche Bank’s alleged misrepresentation. Nor does

it allege any harm that followed from its alleged reliance on

Deutsche Bank’s misrepresentation.

17 Because of these deficiencies, the allegations in the

proposed amended complaint are insufficient to state a fraud

claim, and any such amendment would be futile.

C. Failure to Comply with Local Rule 15

Avarden’s motion to amend is also denied because it fails

to comply with Local Rule 15.1. Under Local Rule 15.1(a), a

party moving to amend its complaint must “identify in the motion

or a supporting memorandum any new factual allegations, legal

claims, or parties, and explain why any new allegations, claims,

or parties were not included in the original filing.” L.R.

15.1(a)(ii)-(iii). The court specifically cited these

provisions of Local Rule 15.1 in its procedural order and

instructed Avarden that its motion “shall comply with the local

rules of this district.” Doc. no. 17 at 1-2.

Avarden’s motion to amend contains five one sentence

paragraphs. The first four paragraphs provide detail on the

procedural background leading to Avarden’s motion to amend. The

fifth paragraph states that “the amended complaint includes

specific details and the particular circumstances constituting

the fraud claim.” Doc. no. 18 at ¶ 5. That vague statement

about only one of the proposed amended claims fails to comply

with the requirements of Local Rule 15.1. Thus, even absent

18 futility as a basis to deny Avarden’s motion to amend, the court

would deny the motion for its failure to comply with Local Rule

15.1.

II. Motion to Dismiss

The court will now turn to Deutsche Bank’s pending motion

to dismiss Avarden’s original complaint. Deutsche Bank’s motion

to dismiss is based on the same arguments underlying its

argument that the proposed amended complaint is futile. In

other words, Deutsche Bank contends that Avarden’s original

complaint suffers from the same pleading defects contained in

Avarden’s proposed amended complaint.

The court agrees. Avarden’s contract claims are not viable

because the underlying purchase agreement limits Avarden’s

remedies to the return of its deposit, which it already

received. Further, there are no allegations in Avarden’s

original complaint from which the court could infer that

Deutsche Bank engaged in conduct that would be actionable under

the CPA. Finally, just like the proposed amended complaint, the

original complaint fails to identify any specific action that

Avarden undertook in reliance on Deutsche Bank’s alleged

misrepresentation or any harm that resulted from such reliance.

In short, because Avarden’s original complaint is not materially

19 different from its proposed amended complaint, it fails to state

a claim for relief for the same reasons that the proposed

amended complaint is futile.

Nevertheless, Avarden appears to argue that its contract

claims should survive because the purchase agreement was

unconscionable. In support, Avarden contends that “a careful

examination of the lengthy and dense Purchase Agreement provides

evidence the Plaintiff could not have entered into the agreement

freely and openly.” Doc. no. 8-1 at ¶ 25. That argument fails,

however, because Avarden’s complaint contains no allegations

supporting its unconscionability theory.

To show unconscionability, Avarden must plead “that [it]

had an ‘absence of meaningful choice’ when entering the

contract, and that the contract terms are ‘unreasonably

favorable’ to the other party.” Bourne v. Stewart Title Guar.

Co., No. 09-CV-00270-PB,

, at *6 (D.N.H. Feb. 16,

2011) (quoting Pittsfield Weaving Co. v. Grove Textiles, Inc.,

(1981)). Yet, Avarden has alleged no facts

that would allow the court to conclude that the purchase

agreement or any provision in it is unconscionable. There are

no allegations concerning the parties’ respective bargaining

power or the negotiation process that preceded the purchase

agreement. Moreover, Avarden has not identified any provision

20 in the contract that it contends is unreasonably favorable to

Deutsche Bank. Therefore, Avarden’s unconscionability argument

lacks merit.

Accordingly, Avarden’s complaint must be dismissed.

Conclusion

For the foregoing reasons, Deutsche Bank’s motion to

dismiss (doc. no. 5) is granted, and Avarden’s motion to amend

its complaint (doc. no. 18) is denied. Avarden’s complaint

(doc. no. 1-1) is dismissed with prejudice. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

September 15, 2016

cc: Kenneth R. Bernard, Esq. Nathan Reed Fennessy, Esq.

21