151 B.R. 879 (1993)
Cathie ARNOLD, Debtor-Appellant,
v.
FIRST CREDIT CORPORATION, Appellee.
Nos. 92 C 7787, 91 B 12375.
United States District Court, N.D. Illinois, E.D.
February 26, 1993.
*880 *881 Robert J. Adams, Robert J. Adams & Associates, P.C., Chicago, IL, for Cathie Arnold, appellant.
Barry M. Fisher, Fisher & Fisher, P.C., Wade R. Joyner, Crowley, Barrett & Karaba, Ltd., Chicago, IL, for First Credit Corp., appellee.
Jerome A. Vinkler, Connelly, Mustes, Palmer & Schroeder, Geneva, IL, for Budget Construction Co., Inc. and Donald Schneider, appellees.

MEMORANDUM OPINION
KOCORAS, District Judge:
This matter comes before the Court on an appeal from the United States Bankruptcy Court for the Northern District of Illinois, 147 B.R. 435. For the reasons set forth below, we affirm the decision of the bankruptcy court.

FACTUAL BACKGROUND
Appellant Cathie Arnold ("Arnold") appeals to this Court to reverse the bankruptcy court's grant of summary judgment against her, and for the appellee, First Credit Corporation ("First Credit"). We review the decision of the bankruptcy court on a de novo basis. In re Schipper, 112 B.R. 917, 918 (N.D.Ill.1990).
Arnold is the owner of two small apartment buildings on the same plot in Chicago ("the Premises"). Combined, the two buildings contain five apartments. Arnold lives in one apartment and rents out the remaining four.
In early 1990, Arnold decided to make various repairs and improvements to the Premises. She contracted with Budget Construction Company ("Budget") to perform certain work on the Premises. Arnold entered an installment contract with Budget, which she concedes was for business, not consumer purposes. The installment contract contained the following language ("the FTC holder language"):

*882 NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT THEREON OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER (emphasis in original).
The contract also included a provision whereby the buyer, Arnold, promised to sign a certificate when the seller, Budget, finished the work described in the contract.
After entering into the agreement with Budget, Arnold signed a document giving First Credit a mortgage on the Premises for purpose of securing the payment of debt under the contract. The mortgage stated that the contract either had or would be assigned to First Credit.
During the month of February 1990, Budget worked on the Premises. At several points during the construction, Arnold complained about Budget's quality of work. Specifically, Arnold complained about the existence of a leak from the third floor to the second floor and about Budget's failure to install the right type of windows and the right type of flooring in one of the kitchens.
On February 22, 1990, Budget asked Arnold to execute a completion certificate that read as follows:
By signing this certificate, you certify that:
The Contractor has completed the work he or she agreed to do to your satisfaction. You confirm that you have no defenses or offsets to, or which might impair, the Retail Installment Obligation. . . .
DON'T SIGN THIS CERTIFICATE UNLESS THE CONTRACTOR HAS FINISHED THE IMPROVEMENTS HE OR SHE AGREED TO MAKE TO YOUR SATISFACTION (emphasis in original).
Arnold signed the completion certificate.
In addition to signing the completion certificate, Arnold confirmed on the telephone to First Credit that the repair work by Budget had been completed to her satisfaction.
In reliance on the completion certificate and on Arnold's oral confirmation that the repairs were complete, First Credit purchased the installment contract from Budget.
It is undisputed that at the time Arnold made these representations, she was not satisfied with the work performed by Budget. Arnold, however, contends that she did not know that First Credit was relying on her statements about the work being completed in making its decision to loan her the money to pay Budget.
In addition to the complaints registered with Budget about the leak, the windows, and the flooring, Arnold now complains about many other defective repairs Budget made to the Premises. These include the following: a lopsided toilet, inadequate plaster work, poor installation of tile in several rooms, and a failure to reset the wood in a hallway after plastering.
Arnold failed to make payments to First Credit due under the installment contract, and on February 19, 1991, First Credit obtained a default judgment of foreclosure on the contract. Arnold filed a petition under Chapter 13 of the Bankruptcy Code on June 10, 1991. Shortly thereafter, Arnold filed an adversary complaint against Budget and First Credit seeking to determine the extent of First Credit's lien against her real property.
Arnold argues in her complaint that Budget is liable for breach of contract, breach of warranty, failure to comply with the Truth in Lending Act ("TILA") Notice to Cancel provision, and statutory and common-law fraud. Furthermore, she claims that First Credit is not a holder in due course and is therefore subject to all claims and defenses arising from Budget's wrongdoing.
First Credit, in turn, filed a motion for summary judgment claiming that (1) Arnold was not a consumer, and thus, was not entitled to protection under TILA; (2) First Credit was a holder in due course, and therefore took free and clear of Arnold's *883 claims and defenses; and finally, (3) that Arnold was estopped from asserting her claims against First Credit. In her response to the summary judgment motion, Arnold conceded that she was not a consumer capable of obtaining protection under TILA. Thus, the bankruptcy court was presented with the two remaining issues, whether First Credit was a holder in due course and whether Arnold was estopped from asserting her claims against First Credit.
The bankruptcy court found that it did not need to reach the issue of whether First Credit was a holder in due course because it determined that as a matter of law Arnold was estopped from asserting her claims against First Credit. We agree with the bankruptcy court that Arnold is estopped from asserting her claims against First Credit, and accordingly, we affirm its judgment.

LEGAL STANDARD
Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other materials show "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue exists, and summary judgment is therefore inappropriate, if "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A "material fact" exists only if there is a factual dispute that is outcome determinative under governing law. Id. at 248, 106 S.Ct. at 2510; Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir.1987). The party seeking summary judgment has the initial burden of showing that no such issue of material fact exists.
When a properly supported motion for summary judgment has been made, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. Like the movant, the nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather he must support his contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Howland, 833 F.2d at 642. Moreover, the opposing party is entitled to the benefit of all favorable inferences that can reasonably be drawn from the underlying facts but not every conceivable inference. De Valk Lincoln Mercury, Inc. v. Ford Motor, Co., 811 F.2d 326, 329 (7th Cir.1987). We consider this appeal with these principles in mind.

DISCUSSION
A. There Is No Error in Considering First Credit's Estoppel Claim
Arnold argues that the bankruptcy court was wrong in addressing only the estoppel issue in its opinion. According to Arnold, the lower court first should have addressed whether First Credit is a holder in due course. Arnold contends that once it is determined that First Credit is not a holder in due course, First Credit will be precluded from asserting an estoppel defense because it will be subject to Arnold's claims and defenses. In support of her contention that First Credit should be subject to her claims and defenses and disallowed from asserting an estoppel defense, Arnold presents this Court with a scattershot of legal arguments. For the following reasons, we determine that none of the legal arguments put forth by Arnold dictate that we disallow First Credit's assertion of an estoppel defense.
Arnold's first argument that First Credit is subject to her claims and defenses without an estoppel escape, relies on section 5802 of the Illinois Residential Improvement Loan Act ("RILA"). Ill.Ann. Stat. ch. 17, para. 5802 (Smith-Hurd 1981). Arnold argues that since this section gives holder-in-due-course status only to those persons who hold a negotiable instrument after having obtained a completion agreement and since First Credit is not a holder of a negotiable instrument, the inevitable conclusion is that the completion certificate signed by Arnold is ineffective to prevent First Credit from being subject to Arnold's claims and defenses. We do not need to address the substance of this argument *884 because the RILA only applies to residential transactions and the transaction at issue in this case was not residential.
Arnold next argues that the completion certificate should not be given effect because it is in contravention of the FTC holder language in the installment contract. The FTC holder language says that "any holder of this consumer credit contract is subject to all claims and defenses that the debtor could assert against the seller of the goods or services obtained" under the contract. This language is required by the Federal Trade Commission to be in consumer credit transactions. 16 C.F.R. § 433 (1992). Arnold contends that the FTC holder language in the installment contract, which First Credit bought from Budget, trumps any effect that the completion certificate and her oral representations might otherwise have on First Credit's liability.
Arnold cites Heastie v. Community Bank of Greater Peoria, 727 F.Supp. 1133 (N.D.Ill.1989) in support. In that case, the court held that it was violation of the Illinois Consumer Fraud and Deceptive Businesses Practices Act for a creditor to include the FTC holder language in its contract and to also have the buyer sign a completion certificate stating that the creditor "does not guarantee the material or workmanship or inspect the work performed" by the seller. The Heastie court found that the non-responsibility clause inserted in the completion certificate "sidestepped" the Federal Trade Commission's requirement of inclusion of the FTC holder language. Id. at 1137. Arnold argues that similarly, First Credit's reliance upon Arnold's statements that she was satisfied with Budget's work and possessed no claims against it is an attempt to sidestep the FTC holder language in the installment contract. Arnold concludes that this Court should therefore ignore the completion certificate and Arnold's oral statements and merely rely upon the FTC holder language in the installment contract, which places liability upon First Credit.
Unlike Heastie, Arnold's case involves a business transaction, not a consumer transaction. Other than relying on Heastie by analogy, this Court has been provided with no legal basis for not giving effect to Arnold's affirmations in the completion certificate and to her oral statements to First Credit. Arnold, by signing the completion certificate and by orally confirming that all of the work was completed to her satisfaction, induced First Credit to issue a loan, and thereby placed herself at risk to being estopped from asserting differently later. Arnold created the contradiction in liabilities through her representations and cannot now in times of financial difficulty assert that she was defrauded or deceived.[1]
The case of U.S. Home Corp. v. George W. Kennedy Construction Co., 610 F.Supp. 759 (N.D.Ill.1985) is also inapposite. The court in U.S. Home Corp. rejected the seller's argument that the buyer was estopped from raising its contract defenses where the buyer had accepted the work under the contract. The contract between the parties unequivocally stated that acceptance of the work shall not operate as a waiver of any portion of the contract or any right to damages. Id. at 761. U.S. Home Corp. is distinguishable because, unlike the instant case, the seller expressly waived its right to raise the estoppel defense. First Credit, on the other hand, has not waived its right to assert estoppel by an express articulation that Arnold's written and oral representations of satisfaction would have no effect on Arnold's later assertion of a claim for damages.
Arnold also contends that she was the victim of an unconscionable contract because when she signed the installment *885 contract she was not aware that she would eventually be asked to sign a completion certificate which included a clause stating that she was satisfied with the work performed and that she possessed no claims for damages. In this Court's view, if Arnold did not agree that the work performed was completed to her satisfaction, she should not have signed the completion agreement. Moreover, we find untenable Arnold's argument that she was unaware that she represented in the completion certificate and orally to First Credit that she was satisfied with the work performed by Budget.
Arnold's analogy to cases involving disclaimers of warranty liability fails as well. The analogy put forth by Arnold is the following: the FTC holder language is analogous to an express warranty and the language negating liability in the completion certificate is analogous to an illegal post-sale disclaimer of an implied warranty. Because post-sale disclaimers by sellers are not given effect, Arnold contends that her statements negating First Credit's liability should also not be given effect. This analogy fails because Arnold, not the seller, is disclaiming the express warranty in this case. Arnold needed only to inform First Credit that the work had not been completed to her satisfaction to avoid executing the certificate and being bound by her representation that she had no claims and defenses.
Having dispensed with Arnold's arguments, we now proceed to examine the merits of First Credit's estoppel defense.
B. First Credit's Defense of Estoppel
Arnold will be estopped from asserting her claims against First Credit if these conditions are met: (1) Arnold made representations that induced reliance by First Credit; (2) Arnold had actual or implied knowledge that the representations were false when made; (3) Arnold had an intent or expected that First Credit would rely on the misrepresentation; (4) First Credit relied upon the misrepresentation without knowledge or a reasonable means of knowing the true facts; and (5) First Credit will suffer prejudice if Arnold is allowed to deny the truth of her assertions in the completion agreement. Dresser Industries, Inc. v. Pyrrhus, A.G., 936 F.2d 921, 930 (7th Cir.1991); UIDC Management, Inc. v. Sears, Roebuck and Company, 167 Ill.App.3d 81, 117 Ill.Dec. 813, 816, 520 N.E.2d 1164, 1167 (1988) (citations omitted). We find that all of these conditions are present in the case before us. Because no genuine issue of material fact exists precluding a finding of estoppel as a matter of law, we affirm the decision of the bankruptcy court.
Although Arnold seemed to admit in the lower court that the first element in the estoppel test was met, Arnold now claims on appeal that the first element of the estoppel test is not met. She claims that she did not make a misrepresentation to First Credit. Rather than dispute the fact that she made a representation to First Credit that induced its reliance, in this Court's opinion, what Arnold actually disputes in her briefed arguments is the second element of the test for estoppel, that is, whether Arnold had actual or constructive knowledge that the representations were false when made. Arnold acknowledges that her oral and written statements that she was satisfied with the work may have been untrue as to defects of which she either actually or constructively possessed knowledge because of their obviousness, but Arnold claims that latent defects existed of which she was unaware either actually or constructively at the time she signed the completion certificate. She claims that several defects "did not become apparent until after the completion certificate was signed." According to Arnold's appeal brief, these defects included the faulty installation of the toilet in the first floor bathroom, the floor in the first floor kitchen, the floor in the second floor bathroom, the toilet in the second floor bathroom, and the toilet in the third floor bathroom and the windows. Thus, Arnold concludes an issue of fact exists that must be tried, mainly, which defects were known to her and which were not at the time she made the oral and written statements in *886 the completion certificate and to First Credit.
Because we find that Arnold fails to support the alleged existence of latent defects with anything but a conclusory allegation, we reject her argument. Like the movant, the nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather she must support her contentions with proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; Howland, 833 F.2d at 642. Although we recognize that the opposing party is entitled to the benefit of all favorable inferences that can reasonably be drawn from the underlying facts, she is not entitled to every conceivable inference. De Valk Lincoln Mercury, v. Ford Motor, 811 F.2d 326, 329 (7th Cir.1987). In her complaint, Arnold lists eighteen defects in the repairs performed by Budget.[2] None of these are alleged to have been hidden or concealed or latent. Furthermore, this Court can discern no quality inherent in the defects that Arnold in her appeal brief claims were latent, or in any of the listed defects for that matter, which would preclude their discovery by Arnold at the time she executed the completion agreement or made her oral statement of satisfaction to First Credit. Her conclusory argument to the contrary is not enough to withstand summary judgment.
Because Arnold fails to provide evidence illustrating that any latent, undiscoverable defects existed, we conclude that Arnold knew or should have known that the representations that she made to First Credit were untrue. She admits that at the time she signed the certificate and made the oral representations she was not satisfied. During the construction process Arnold complained about a leak from the third floor to the second floor, and about improper installation of windows and flooring. She claims that her complaints had not been addressed at the time she signed the completion certificate and confirmed to First Credit her satisfaction. Because Arnold possessed actual knowledge of many of the alleged defects, and certainly possessed constructive knowledge of all of the rest, we find that elements one and two of the above test for estoppel are met in this case.
Arnold argues that the third element is not met because she did not intend that First Credit would rely upon her oral and written representations. Intent for the other party to rely is not required; negligence on the part of the party whose conduct misleads the other is enough. Farmers & Merchants Bank v. Davis, 151 Ill. App.3d 929, 104 Ill.Dec. 850, 855, 503 N.E.2d 565, 570 (1987) (citations omitted). Illinois courts hold that element three is met if it is reasonable for the other party to rely on the misrepresentation. Meier v. Aetna Life and Casualty Standard Fire Ins. Co., 149 Ill.App.3d 932, 103 Ill.Dec. 25, 28, 500 N.E.2d 1096, 1099 (1986). We conclude that even if Arnold did not intend for First Credit to rely upon her representations, Arnold was negligent and should have expected First Credit to rely upon her representations. We disagree with Arnold that the presence of the FTC holder language made First Credit's reliance upon Arnold's representations unreasonable. *887 The completion certificate contained a clause that in large, bold letters, expressly warned Arnold not to sign unless Budget had completed the improvements to her satisfaction. It was reasonable for First Credit to rely upon Arnold's signature as evidence that she was satisfied and that she possessed no defenses to the installment contract. In addition, it was even more reasonable for First Credit to so rely after its follow-up phone call to Arnold substantiated what she had stated in the completion certificate. Based on her statements, First Credit could reasonably assume that Arnold would have taken into account all open and obvious defects that existed at the time she made the statements and would have affirmatively assessed the status of the repairs. Hence, we agree with the bankruptcy court that Arnold was culpably negligent in signing the completion certificate and in making oral representations to First Credit that she was satisfied with the work as performed.
For the fourth element to be satisfied, First Credit must have relied upon Arnold's misrepresentation without knowledge or a reasonable means of knowing the true facts. Arnold does not dispute that First Credit actually relied upon the misrepresentation. What is in dispute is whether First Credit acted without a reasonable means of knowing the true facts. We agree with the court below that First Credit, in relying on Arnold's statements, did act without a reasonable means of knowing the true facts. First Credit possessed no duty to second-guess Arnold's own statements of satisfaction. To do so would have required First Credit to have inspected the Premises. Such an inspection, however, would shed little light on whether Arnold was satisfied with the work. That is a subjective test that First Credit could not have known was false by objective inspections. Furthermore, the whole purpose of a satisfaction clause is to prevent assignees of these types of contracts from having to investigate whether the obligor has any defenses. Requiring such an investigation in every case would greatly increase transaction costs of these assignments. If transaction costs increase, either the borrower will pay more, or will be prohibitively cost out of the market for building repair. Indeed, in this case, the facts suggest that Budget would not have entered into an agreement with Arnold had it not been reasonably sure it could locate an assignee to purchase the installment contract from it. As did the lower court, we find that First Credit's use of and reliance on the satisfaction clause to assure itself that no known or discoverable defects existed was reasonable.
Both the parties and this Court agree that First Credit would be prejudiced if Arnold is allowed to assert her claims against it. Because all five elements of the test for estoppel are met in this case, we affirm the judgment of the bankruptcy court and find for First Credit.
NOTES
[1]  Arnold cites other cases in support that are similarly distinguishable. In Hinojosa v. Castellow Chevrolet Oldsmobile, 678 S.W.2d 707 (Tex. Ct.App. Corpus Christi 1984) and in Hernandez v. Forbes Chevrolet Co., 680 S.W.2d 75 (Tex.Ct. App. 13th Dist.1984), the courts refused to enforce waiver-of-defenses clauses whereby the buyer agreed not to assert against the holder where the contract also contained the FTC holder notice. These cases are distinguishable, not only because those cases dealt with consumer transactions and not with business transactions, but also because in Texas, unlike in Illinois, waiver-of-defense clauses are prohibited in retail installment contracts. See Tex.Rev.Civ.Stat. Ann. art. 5069-7.07(6) (Vernon Supp.1984).
[2]  The defective repairs include the following: failure to properly install the first floor toilet; failure to correct the improperly installed first floor toilet by re-laying tile; inadequate plaster work in the first floor bathroom; improper installation of tile floor and underlay in first floor kitchen causing the underlay to separate from the floor, and failure to level a lip arising from this floor; installation of a tile floor instead of a wood floor in first floor kitchen; improper installation of a tile floor in the second floor bathroom causing the floor to hump; failure to remove bathtub leaving openings for moisture to collect; inadequate plaster work in the second floor bathroom; failure to install a shoe or base under the second floor toilet; improper installation of floor in third floor bathroom due to failure to disconnect bathtub; failure to correct damage to pipes and seals caused by improper installation of floor in third floor bathroom; failure to correct plaster damage resulting from improper installation of floor in third floor bathroom; failure to install a shoe or base under the third floor toilet; inadequate plaster work in the third floor bathroom; installation of tile floor instead of wood in third floor bathroom; inadequate plaster work in hall; and failure to reset woodwork in the public hall after plastering.


404 N.W.2d 167 (1987)
Eugene F. DWYER, Appellant,
v.
CLERK OF the DISTRICT COURT FOR SCOTT COUNTY, Appellee.
No. 86-389.
Supreme Court of Iowa.
April 15, 1987.
Stephen P. Wing of Dwyer & Wing, P.C., Davenport, for appellant.
*168 Thomas J. Miller, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., and Realff Otteson, Asst. Co. Atty., for appellee.
Considered en banc.
McGIVERIN, Justice.
Plaintiff Eugene F. Dwyer appeals from the denial of a writ of mandamus to compel the clerk of court of the Iowa District Court for Scott County to enter on the judgment docket a satisfaction affidavit executed by Dwyer's ex-wife for child support payments made directly to her, not through the office of the clerk of court. We reverse and remand the case to district court for the issuance of the requested writ.
I. Background facts and proceedings. In August 1983 a decree was entered dissolving the marriage of Eugene Dwyer and his former wife. The dissolution decree required Dwyer to pay child support in the amount of $212.50 per month for each of the couple's two children and to pay certain medical and tuition expenses for the children. As required by Iowa Code section 598.22 (1983), the decree directed Dwyer to make these payments through the office of the clerk of the district court. Dwyer and his former wife agreed, however, that he would make the payments directly to his ex-wife, bypassing the clerk of court.
In this action, there has never been an assignment of the child support payments by Dwyer's ex-wife to the Iowa Department of Human Services. See Iowa Code ch. 252C. The department is not a party to this mandamus proceeding nor was it a party to the underlying dissolution of marriage action.
From 1983 to 1985 Dwyer made the payments, as agreed, directly to his ex-wife. In July 1984 and October 1985 Dwyer filed with the clerk of court sworn affidavits of his ex-wife who acknowledged receipt of the child support payments. The clerk accepted these documents for filing and noted them on the judgment docket. In December 1985 Dwyer sought to file another similar affidavit of satisfaction; however, on this occasion the clerk of court accepted the affidavit for filing but refused to enter the satisfaction affidavit on the dissolution judgment docket. The clerk of court based this refusal on Iowa Code section 598.22, which requires child support payments to be made to the clerk of court, and on a 1985 amendment to that section which specifies that payments to any other person do not satisfy the underlying support obligation. 1985 Iowa Acts ch. 178, § 8 (codified as amended at Iowa Code § 598.22 (Supp.1985)).
Dwyer filed a petition seeking a writ of mandamus to compel the clerk of court to enter the satisfaction affidavit on the judgment docket. See Iowa Code ch. 661 (1985). The district court denied mandamus relief, and Dwyer has appealed. The scope of review of this equity action is de novo. Iowa Code § 661.3; Iowa R.App.P. 4.
Mandamus is a special action under Iowa Code chapter 661 "brought to obtain an order commanding an inferior tribunal, board, corporation, or person to do ... an act, the performance ... of which the law enjoins as a duty resulting from an office, trust, or station." Iowa Code § 661.1; see Stafford v. Valley Community School Dist., 298 N.W.2d 307, 309 (Iowa 1980). The action seeks to enforce established rights and corresponding duties imposed by law. Stafford, 298 N.W.2d at 309.
In his mandamus action, Dwyer seeks to compel the clerk of court to note the satisfaction affidavit on the dissolution judgment docket. Dwyer argues the clerk of court is under a statutory duty to record or note the satisfaction, and he also claims section 598.22, as amended, is constitutionally infirm. Specifically he argues the section denies equal protection of the law by requiring child support judgment debtors to make payments through the clerk of court while other judgment debtors can satisfy their obligations privately. This requirement, he asserts, has no rational relationship to the goal of enforcing child support obligations against nonpaying parents. Dwyer also contends the statutory language is unconstitutionally overbroad. Due to our resolution of his first argument, *169 we need not address Dwyer's constitutional challenges to the statute on its face and as applied to him.
II. Duty of clerk of district court to record the satisfaction of judgment. The general duties the clerk of the district court shall perform are specified in Iowa Code section 602.8102 (Supp.1985). Subsection 602.8102(98) imposes a duty on the clerk of court to carry out duties specified in Iowa Code sections 624.8 through 624.21 and section 624.37. Iowa Code section 624.20 (1985) states, "Where a judgment is set aside or satisfied by execution or otherwise, the clerk shall at once enter a memorandum thereof on the column left for that purpose in the judgment docket."
The clear duty of Dwyer's former wife to execute a satisfaction of judgment is imposed on her by statute at Iowa Code section 624.37. That section provides:
When the amount due upon judgment is paid off, or satisfied in full, the party entitled to the proceeds thereof, or those acting for that party, must acknowledge satisfaction thereof upon the record of such judgment, or by the execution of an instrument referring to it, duly acknowledged and filed in the office of the clerk in every county wherein the judgment is a lien. A failure to do so for thirty days after having been requested in writing shall subject the delinquent party to a penalty of fifty dollars, to be recovered in an action therefor by the party aggrieved.
Iowa Code § 624.37 (emphasis added).
The clerk of court, even though aware of these provisions, refused to note on the dissolution judgment docket the December 1985 satisfaction of judgment affidavit executed by Dwyer's ex-wife and presented for filing by Dwyer. Relying on an Iowa attorney general's letter opinion, the clerk asserted that the 1985 amendment of Iowa Code section 598.22 prohibited the noting of the satisfaction affidavit on the judgment docket. The amended statute reads in relevant part:
All orders or judgments entered under chapter 252A, chapter 675, or this chapter which provide for temporary or permanent support payments shall direct the payment of such sums to the clerk of the district court for the use of the person for whom the payments have been awarded. Payments to persons other than the clerk of the district court do not satisfy the support obligations created by such orders or judgments....
....
An order or judgment entered by the court for temporary or permanent support or for an assignment shall be filed with the clerk. The orders have the same force and effect as judgments when entered in the judgment docket and lien index and are records open to the public. The clerk shall disburse the payments received pursuant to the orders or judgments within ten working days of the receipt of the payments. All moneys received or disbursed under this section shall be entered in a record book kept by the clerk, which shall be open to the public. The clerk shall not enter any moneys paid in the record book if not paid directly to the clerk....
Iowa Code § 598.22 (Supp.1985) (emphasis added).
Our rules of statutory construction direct us to give effect, if possible, to both general and special provisions of the code that apparently conflict. Iowa Code § 4.7 (1985). See generally 2A N. Singer, Sutherland Statutory Construction ch. 51 (Sands 4th ed. 1984) (construing statutes in pari materia).
This mandamus action is directed at a clerk of court's duty to file and note papers presented by parties to an action, the petitioner and respondent in the underlying dissolution of marriage case. The clerk has a ministerial duty to file and note satisfactions of judgment presented to the clerk. Iowa Code §§ 602.8102(98), 624.20. Section 598.22, as amended, does not relieve the clerk of the duty to file and note satisfactions. Section 598.22 merely puts in question the validity or legal effect of a satisfaction of child support judgment document executed by a recipient former spouse who accepts payments outside the clerk's office.
*170 Dwyer does not challenge the provision of section 598.22 that prohibits the clerk from entering moneys paid outside the clerk's office in the clerk's record book concerning child support. The clerk maintains two sets of books relating to dissolutions and child support payments in the clerk's office. The alimony and child support payment book, referred to in section 598.22, is a ledger of the cash and checks received by the clerk and the disbursement made of those moneys. This is the record book mandated by title 42, subsection 654(10) of the United States Code (1982). Dwyer concedes his payments should not be recorded in this book because the payments were not channeled through the clerk's office.
The clerk also maintains a dissolution judgment docket that recites the date events occur in the file. See Iowa Code § 602.8104(2)(b) (Supp.1985). The docket notes when a decree ordering the payment of child support has been entered. It also leaves spaces for the notation of executions and satisfactions of judgment. Section 598.22 does not refer to this judgment docket, on which Dwyer seeks to compel the clerk to note his ex-wife's satisfaction affidavit and to which Iowa Code section 624.20 (1985) specifically refers.
The clerk of the district court is under a duty pursuant to subsection 602.8102(98) to file and note all documents presented to the clerk for filing. It is not the clerk's duty or function to rule on the validity or legal effect of the document so received. Cf. Proctor v. Garrett, 378 N.W.2d 298, 299 (Iowa 1985) (county recorder compelled to record common-law lien without regard to legal validity of the lien).
In Proctor v. Garrett, farmers attempting to record common-law liens against their properties sought a writ of mandamus to compel recordation following the county recorder's refusal to record such liens. 378 N.W.2d at 298. When we considered that case, we had already determined common-law liens had no validity in Iowa. Id. (citing Federal Land Bank v. Boese, 373 N.W.2d 118 (Iowa 1985)). We concluded, however, that the county recorder had a ministerial duty to record those liens, subject to the district court's determination of the validity of the recorded documents in an appropriate later proceeding. Id. at 299. We concluded it was not the function of the county recorder to determine the proffered document had no legal validity and thus refuse to file it.
The validity and legal effect of a satisfaction of judgment also are properly left to the court in any later proceeding that may challenge the filed and noted satisfaction affidavit. The payor former spouse carries the burden of proving the payee ex-spouse has received valuable consideration for a release and satisfaction of judgment. See Broyles v. Iowa Dep't of Social Servs., 305 N.W.2d 718, 723 (Iowa 1981).
Iowa Code section 598.22 (Supp.1985) may raise the question whether any satisfaction executed by Dwyer's ex-wife would have the legal effect of validly satisfying the child support judgment entered against him. In the defendant clerk's view, the provision apparently precludes the crediting of any amounts Dwyer has paid to his ex-wife outside the clerk of court's office against the child support judgment, even though there is no dispute by the parties or the clerk that the payments were made and Dwyer is current on his child support obligation. The clerk of court in her motion for judgment on the pleadings admitted Dwyer had made all payments due by him to his ex-wife under the decree. Under that view, the section also would seem to preclude Dwyer in a later proceeding, challenging the filed and noted satisfaction or citing him for contempt, from proving the payment of these amounts by cancelled checks and acknowledged satisfactions of judgment; further, the judgment could then be satisfied only by making duplicate payments through the clerk's office. This could result in unfairness to a person in Dwyer's position. The question of the legal effect of the affidavit of satisfaction of the judgment signed by Dwyer's ex-wife, however, is not before us.
We believe the relevant statutes must be reconciled if possible, even though their *171 wording could allow a contrary interpretation. Section 624.37 imposes a clear and specific duty upon a judgment creditor, such as Dwyer's ex-wife, to satisfy the judgment when paid. Section 598.22, as amended, must be construed, if possible, to permit the judgment creditor former spouse to fulfill this duty and allow the clerk to enter the satisfaction. This can be done if we allow the clerk to enter the satisfaction affidavit of the former spouse on the judgment docket, yet reserve the issue of the validity of the proffered affidavit of satisfaction. This is consistent with Broyles.
In construing section 598.22, as amended, we cannot assume the legislature intended to enact a law that would lead to absurd consequences where, as here, a child support judgment debtor has indisputably paid all sums due under the decree but the clerk refuses even to note the judgment creditor's affidavit of satisfaction on the judgment docket book.
We only hold that the clerk of the district court had a duty to file the affidavit of satisfaction and enter a memorandum thereof on the judgment docket as required by Iowa Code sections 624.20 and 624.37.
We would encourage the legislature to review section 598.22 with two considerations in mind. First, the laudatory purposes of discouraging fraud and encouraging accurate record keeping concerning child support should be retained. At the same time the legislature should attempt to provide a means by which a payor spouse, who maintains an amicable relationship with the former spouse and who seeks to keep their monetary affairs private, indisputably can prove that payments in the amount specified in the dissolution decree were made to the former spouse, outside the clerk's office.
We reverse the district court's denial of the writ of mandamus and remand the case for an appropriate order directing issuance of the writ.
REVERSED AND REMANDED.
All Justices concur except REYNOLDSON, C.J., and SCHULTZ, WOLLE, and NEUMAN, JJ., who dissent.
REYNOLDSON, Chief Justice (dissenting).
I cannot agree that the district court's well-reasoned ruling, denying mandamus in these circumstances, should be overturned.
The rules we apply in these cases are summarized succinctly in 52 Am.Jur.2d Mandamus § 64, at 388 (1970):
To warrant the issuance of [a] writ [of mandamus], not only must there be a legal right in the relator, but, owing to the extraordinary and drastic character of mandamus and the caution exercised by courts in awarding it, it is also important that the right sought to be enforced be clear and certain. There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy.
See Hewitt v. Ryan, 356 N.W.2d 230, 233 (Iowa 1984); Hurd v. Odgaard, 297 N.W.2d 355, 357 (Iowa 1980); Headid v. Rodman, 179 N.W.2d 767, 770 (Iowa 1970) ("Plaintiff's right to the performance of the act he seeks to compel must be clear, certain and free from the possibility of any reasonable controversy."). In the face of these principles, it ought to give us pause in reversing the district court when plaintiff deems it necessary to attack the constitutionality of the statutes the clerk was following in refusing to make a book entry that defendant's obligations under the dissolution decree were satisfied.
Further, plaintiff's brief concedes that at least in the 1985 amendments to Iowa Code section 588.22 "it is clear that the legislature intended to require, prospectively, payments to be made through the office of the Clerk of Court." Nowhere in the Iowa law do we find the concept that a friendly relationship between parties to a dissolution decree, however commendable, will excuse a failure to comply with the plain language of the decree, or the express intent of Iowa *172 Code provisions. Plaintiff's quandary clearly is of his own making.
I. District court was on solid ground in holding amended Iowa Code section 598.22 constitutional. Plaintiff's brief concedes the "State has a legitimate interest in seeing that parents support their children." The state has evidenced this concern, at least from the inception of our 1970 "no-fault" dissolution act,[1] by requiring that all orders for support shall direct "the payment of such sums to the clerk of the district court for the use of the person for whom the payments have been awarded." Iowa Code § 598.22 (1985) (as amended by 1985 Iowa Acts ch. 178, § 8). Such orders shall be "open to the public." Id. If the ordered payments are not paid, the clerk is mandated to certify a default to the court, which, on its own motion, may institute contempt proceedings. Id.
The reasons for a readily available record of support payments, kept by a public official, are plain enough. Domestic relations cases, many generated by child support controversies, clog our courts and comprise almost fifty percent of our civil docket. Nor is Iowa an exception to the national problem palpated by Senate Report (Finance Committee) No. 93-1356, relating to the Social Services Amendments of 1974:
The problem of welfare in the United States is, to a considerable extent, a problem of the non-support of children by their absent parents. Of the 11 million recipients who are now receiving Aid to Families With Dependent Children (AFDC), 4 out of every 5 are on the rolls because they have been deprived of the support of a parent who has absented himself from the home.
1974 U.S.Code Cong. & Admin.News 8133, 8145.
Support payments too long delinquent have triggered coercive settlements for desperate custody parents, impoverishing such parents and their children. See, e.g., In re Marriage of Carlson, 338 N.W.2d 136 (Iowa 1983). In other situations alleged releases of unrecorded support payments, e.g., Broyles v. Iowa Dep't of Social Servs., 305 N.W.2d 718, 723 (Iowa 1981), and oral or written "modifications" of support obligations, e.g., Denning v. Denning, 185 N.W.2d 238, 240 (Iowa 1971); Herb v. Herb, 251 Iowa 957, 959-60, 103 N.W.2d 361, 362 (1960), have resulted in unnecessary litigation.
Small wonder, then, that the legislature took additional steps to insure compliance with the original intent and purpose of Iowa Code section 598.22. The 1985 amendments to section 598.22[2] specifically provided that except in certain circumstances not present here payments to persons other than the district court clerk "do not satisfy the support obligations created by such orders or judgments." Iowa Code § 598.22 (1985) (as amended by 1985 Iowa Acts ch. 178, § 8) (emphasis added). Except for those same circumstances, the amendments further provided that "[t]he clerk shall not enter any moneys paid in the record book if not paid directly to the clerk." Id. This legislation of course furthers the intent of Congress expressed at 42 U.S.C. section 654 ("State plan for child and spousal support"), subsection 10 of which states the plan must "provide that the State will maintain a full record of collections and disbursements made under the plan and have an adequate reporting system." 42 U.S.C. § 654 (1982).
Addressing the constitutionality of these statutory provisions, plaintiff's brief concedes a suspect classification is not involved here. We thus apply the analysis recently articulated in State v. Martin, 383 N.W.2d 556, 560 (Iowa 1986):
Because the statute does not involve a suspect classification or a fundamental right, it is evaluated under the traditional test for equal protection. Under that test, the statute is presumed to be valid and will be sustained if the classification *173 drawn is rationally related to a legitimate state interest.
I agree with the district court that "[t]he State has a legitimate governmental interest in promoting compliance with the law, preventing fraud, and protecting its citizens from unnecessary court litigation." Iowa Code section 598.22 as amended does not violate the equal protection provisions of the United States and Iowa Constitutions.
Nor are the amendments under scrutiny unconstitutionally overbroad as claimed by the plaintiff. Here the plaintiff appears to argue the 1985 amendments sweep too broadly in adversely affecting someone like him, who has merely violated the court's decree by making payments directly to the custodial parent. Plaintiff cites no helpful authority. Ordinarily legislation is challenged for overbreadth only where there is a claimed violation of first amendment rights. 16A Am.Jur.2d Constitutional Law § 460, at 246-48 (1979); see, e.g., State v. Wedelstedt, 213 N.W.2d 652, 654-56 (Iowa 1973). Plaintiff's "overbreadth" contention is without merit.
II. Not only is there strong authority to hold amended Iowa Code section 598.22 constitutional, there is support to hold the defendant clerk rightly refused to enter satisfaction of the child support judgment.
The majority embraces plaintiff's argument that Iowa Code sections 602.8102(98), 624.20, and 624.37 require the clerk to enter a notation of satisfaction of the child support judgment on the judgment docket. These statutory provisions apply to judgments generally. The flaw in this analysis is that a child support judgment, under the plain language of amended Iowa Code section 598.22, is not satisfied by payments to persons other than the clerk of the district court. Amended Iowa Code section 598.22 is a specific statute dealing directly with the manner of satisfying child support judgments. Under a well-settled principle of Iowa law, this specific statute prevails over the general statutes relating to judgments. Iowa Code § 4.7 (1985); Ritter v. Dagel, 261 Iowa 870, 881, 156 N.W.2d 318, 324-25 (1968); State v. Halverson, 261 Iowa 530, 537-38, 155 N.W.2d 177, 181 (1967) ("It is a fundamental rule that where a general statute, if standing alone would include the same matter as a special statute and thus conflict with it, the special act will be considered an exception to or qualification of the general statute and will prevail over it, whether it was passed before or after such general enactment.").
If, as plaintiff contends, these conflicting statutes must be "construed, if possible, so that effect is given to both,"[3] then it must be conceded that section 598.22 defines the only manner in which a child support judgment can be satisfied and only upon satisfaction in the prescribed way does the clerk have an obligation to note the judgment satisfied under sections 602.8102(98), 624.20, and 624.37.
The distinction between this case and Proctor v. Garrett, 378 N.W.2d 298 (Iowa 1985), relied on by the majority, is clear. In Proctor we held the county recorder was not authorized to make a judgment on the validity of a common-law lien presented for recording. In the case before us the clerk was not called upon to exercise a judgment whether the obligation of the support decree was satisfied. The clerk's own record of payments, which the clerk was obligated to keep, immediately disclosed there was no satisfaction of the judgment. To require the clerk to note a judgment satisfied upon presentation of a purported written "satisfaction" not only would require the clerk to ignore his or her own records, but would violate the plain statutory intent. Further, it would effectively repeal the legislative language that specifically declares, in amended Iowa Code section 598.22, that such a judgment is not satisfied by payments made to a person other than the clerk.
The majority's solution is to return the parties and the State to the conditions the 1985 amendments to section 598.22 were designed to cure. The majority reasons the validity and legal effect of the purported "satisfaction" may be fought out in subsequent *174 lawsuits to determine whether the payments actually were made, or whether statutory liens on real estate still exist.[4] This result leaves Iowa's title examiners in a murky battlefield saturated with legal land mines.
I would deny the writ of mandamus on the ground there is a reasonable controversy whether the clerk was required to note the "satisfaction" of the judgment against this plaintiff. Were I to reach the merits, I would hold the clerk had no such obligation with respect to any written "satisfaction" relating to required child support payments falling due after July 1, 1985, the effective date of the 1985 amendments to Iowa Code section 598.22.
SCHULTZ, WOLLE, and NEUMAN, JJ., join this dissent.
NOTES
[1]  1970 Iowa Acts ch. 1266.
[2]  In 1986 the legislature underscored its intent by inserting essentially the same language in a new code chapter creating the child support recovery unit. See Iowa Code § 252B.14 (1987).
[3]  See Iowa Code § 4.7 (1985).
[4]  "A court-ordered child-support judgment becomes a lien when payment is due." In re Marriage of McMorrow, 342 N.W.2d 73, 75 (Iowa 1983) (quoting Broyles v. Iowa Dep't of Social Servs., 305 N.W.2d 718, 721 (Iowa 1981)); see Iowa Code § 624.24 (1985) (as amended by 1985 Iowa Acts ch. 100, § 9 and as repealed and substitute enacted, 1986 Iowa Acts ch. 1014, § 2).


                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

GEORGE GODINHO,                                 No.    14-72855

                Petitioner,                     Agency No. A098-141-535

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted May 6, 2020**

Before:      BERZON, N.R. SMITH, and MILLER, Circuit Judges.

      George Godinho, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for

abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597

F.3d 983, 986 (9th Cir. 2010). We grant the petition for review and we remand.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      In denying Godinho’s motion to reopen as untimely and number barred, the

BIA found that Godinho failed to show a material change in country conditions in

India as to his religion claim. In his opening brief, Godinho does not challenge the

denial of the motion to reopen on this basis. See Lopez-Vasquez v. Holder, 706

F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an

opening brief are waived).

      Godinho also sought reopening to apply for asylum, withholding of removal,

and relief under the Convention Against Torture based on his political opinion. In

denying the motion to reopen, the BIA abused its discretion by failing to make a

determination as to Godinho’s political opinion claim and by failing to consider his

supporting evidence, including the country conditions evidence and Godinho’s two

declarations. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (the

agency is “not free to ignore arguments raised by a petitioner”); see also Salim v.

Lynch, 831 F.3d 1133, 1137-39 (9th Cir. 2016) (concluding the BIA abused its

discretion by failing to consider evidence of changed country conditions in light of

the new claim asserted in the motion to reopen); Mejia v. Ashcroft, 298 F.3d 873,

879-80 (9th Cir. 2002) (the agency abused its discretion by failing to consider a

claim asserted in the motion to reopen). Further, the BIA abused its discretion in

finding that Godinho did not adequately support his claim that a police inspector is

still looking for him without addressing Godinho’s declarations. See Najmabadi,

                                          2                                   14-72855
597 F.3d at 990 (the BIA “is required to accept as true the facts stated in [an

applicant’s affidavit accompanying a motion to reopen] unless they are inherently

unbelievable”).

      Thus, we grant the petition for review and remand to the BIA for

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.

                                          3                                       14-72855


838 F.Supp. 658 (1993)
Robert V. PLISKIN et al., Plaintiffs,
v.
Ralph BRUNO, et al., Defendants.
Steven R. VALLEE, et al., Plaintiffs,
v.
Ralph BRUNO, et al., Defendants.
Jacqueline GOLDMAN, et al., Plaintiffs,
v.
Mark KEARNS, et al., Defendants.
Civ. Nos. 90-0005-P-C, 90-0038-P-C and 90-0004-P-C.
United States District Court, D. Maine.
December 1, 1993.
*659 Jeffrey Rosenblatt, William D. Robitzek, Berman & Simmons, P.A., Lewiston, ME, for plaintiffs.
Peter Haroutian, pro se.
Richard P. Romeo, Smith & Elliott, Portland, ME, for Ralph Bruno.
Jerrol A. Crouter, Benjamin E. Marcus, Drummond, Woodsum, Plimpton & MacMahon, Portland, ME, for Port Resort Realty, Inc.
John M.R. Paterson, Gregory A. Tselikis, Kate S. Debevoise, Bernstein, Shur, Sawyer, & Nelson, Portland, ME, for Granite State Nat. Bank, First N.H. Mortg. Corp.
Mark A. Kearns, pro se.
William C. Knowles, Verrill & Dana, Portland, ME, for James D. Waterman.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
GENE CARTER, Chief Judge.
These three civil actions stem from the offer and sale of units at two real estate condominium projects in Kennebunkport, *660 Maine between July 1987 and April 1988. The cases will be referred to as Pliskin, Vallee, and Goldman. Plaintiffs in Pliskin and Vallee purchased condominium units at the Shawmut Inn, and Plaintiffs in Goldman purchased units at the Inn at Goose Rocks. The purchases at both projects were made from Defendant developers James Waterman[1] and Mark Kearns. Waterman's and Kearns' acquisition and development of these projects, as well as the purchase of units by several Plaintiffs, were financed with loans from subsidiaries of First New Hampshire Banks, Inc.[2] of which Defendant First New Hampshire Bank ("First NH") is the successor corporation.[3] The gravamen of Plaintiffs' Complaints is that Defendants, in the manner in which they offered and sold these condominium units and in events subsequent to Plaintiffs' purchases of these units, violated federal and state securities laws as well as breached contractual agreements and fiduciary duties, and that they were negligent. See First Amended Complaint, Goldman (Docket No. 2), and Third Amended Complaint, Vallee (Docket No. 121a).
These actions originally involved twenty-six Plaintiffs, but through settlement of claims, action of the Court, and attrition, there now remain only five Plaintiffs including Jacqueline and Albert Goldman in the Goldman case, and Lorraine Kavanaugh[4] and Richard and Evelyn Robbins in the Vallee case.[5] First NH now moves for Partial Summary Judgment against the above-named Plaintiffs, except Lorraine Kavanaugh, on all counts involving securities law violations, contending that the transactions in which Plaintiffs purchased their condominium units at Shawmut and Goose Rocks do not, as a matter of law, constitute the sale of "securities" under the federal and state acts. Motion by Defendant First NH for Partial Summary Judgment, Goldman (Docket No. 87), and Pliskin (Docket No. 171). Defendant Kearns has joined First NH's Motion. Response by Defendant Kearns, Goldman (Docket No. 103), and Pliskin (Docket No. 201).
The immediate legal predicate for this Motion for Partial Summary Judgment is this Court's decision, after trial, in a related *661 action involving the offer and sale of condominium units at the Bellevue Inn, another Kearns-Waterman project located near Wells Beach in Maine. Lavery v. Kearns, 792 F.Supp. 847 (D.Me.1992).[6] In Lavery, this Court found that the transactions at issue were not securities; hence, plaintiffs could not rely on the protections of federal and state securities laws to obtain relief for what were, in essence, contract claims. As Plaintiffs in the current actions have been unable to point to any genuine issues of material fact to distinguish their transactions from those presented in Lavery, the Court finds that, as a matter of law, the offer and sale of condominiums at Goose Rocks and Shawmut do not constitute securities. Hence, Defendants' Motion for Partial Summary Judgment will be granted, resolving in Defendants' favor all counts in Plaintiffs' Complaint that allege federal and state securities law violations.[7]
Under Federal Rule of Civil Procedure 56(c), summary judgment must be granted if "the pleadings, depositions, answers 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." As the Court of Appeals for the First Circuit has recently stated:
[T]he movant must adumbrate `an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 325 [106 S.Ct. 2548, 2553, 91 L.Ed.2d 265] (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both `material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 [106 S.Ct. 2505, 2510, 91 L.Ed.2d 202] (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904 [96 S.Ct. 1495, 47 L.Ed.2d 754] (1976), and `genuine,' in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248 [106 S.Ct. at 2510]; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. `The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:
[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. *662 Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.1989). The undisputed facts which are relevant to the Court's assessment of Defendants' Summary Judgment Motion are set forth below.

I. UNDISPUTED FACTS

A. Purchase and Marketing of Units at the Shawmut Inn and the Inn at Goose Rocks
Defendants Waterman and Kearns obtained financing for the purchase of the Shawmut Inn ("Shawmut") in the winter of 1986 from subsidiaries of First NH Banks, Inc. In 1987 and 1988, after the purchase of the Shawmut was completed, they began to market and sell twenty hotel-condo units located in the Chalet building of the Inn. The Inn was located on the ocean in Kennebunkport and included several other buildings, housing a restaurant, lounge, and conference facilities. Kearns and Waterman planned to replace most of the buildings on the property to create a 205-room "world class" resort. See Deposition of James Waterman, Nov. 14, 1990 ("Waterman Deposition"), Exhibit 1, Vallee. Their development plans included tearing down the Chalet. Under the terms of their agreement, investors who purchased condo units in the Chalet could select a "buyback" option under which Defendants promised to repurchase their units at a fixed price before the building was destroyed or they could trade in their units for ones in the newly constructed buildings along with paying for any difference in price. See Waterman Deposition, Exhibit 2 (explaining the buyback option) and Contract for the Purchase and Sale of Real Estate, Exhibit B, Vallee (Docket No. 1). Vallee Plaintiffs Richard and Evelyn Robbins purchased a condo unit at the Shawmut.
In December of 1987, one year after purchasing the Shawmut, Kearns and Waterman obtained additional financing from First NH Banks, Inc. for the purchase of the Inn at Goose Rocks ("Goose Rocks"). Located about a half mile from the beach in Kennebunkport, Goose Rocks included a restaurant and 32 condominium units which Defendants began marketing shortly after the purchase. Purchasers at Goose Rocks signed buyback agreements that are similar to the agreements signed by Shawmut investors. Because plans for the resort did not include any major construction, however, unit owners at Goose Rocks could opt out of the buyback option and keep their original units. Contract for the Purchase and Sale of Real Estate, Exhibit B, Goldman (Docket No. 1). Goldman Plaintiffs Jacqueline and Albert Goldman purchased a unit at Goose Rocks.
In soliciting purchasers at both developments, Defendants' marketing approach emphasized the coastal location of the projects, the opportunity that the condo units presented for owning real estate at the beach, and the possible appreciation in value that comes with owning real estate:
This concept of the hotel-condo, with a focus on coastal location for a reasonable price and general market appreciation, has always been my sales message to potential buyers of such units.
Waterman's and Kearns' Affidavits, Vallee (Docket Nos. 78-9) at ¶ IV.

B. Lease/Buyback Option
It is undisputed that Plaintiffs purchased their units at Goose Rocks and the Shawmut for investment, not residential, purposes. Defendant First NH Bank's Statement of Material Facts, Goldman (Docket No. 88), and Pliskin (Docket No. 172) at 13. In negotiating the purchases, Defendants presented various options to investors for managing their units. Of primary importance was the lease/buyback option because all Plaintiffs remaining in these cases were parties to such agreements.

1. Lease agreements
The lease agreements provided that unit owners would lease their units to Atlantic Hospitality, Inc., a company owned by Kearns and Waterman, which assumed all managerial responsibility. Unit owners, in turn, would receive monthly rental payments in a fixed amount calculated to cover their monthly mortgage payments, condominium fees, and real estate taxes. Waterman Deposition, Exhibit 2. The rental payment was guaranteed under the terms of the agreement *663 regardless of whether Atlantic Hospitality was able to rent out the unit. See Lease Agreements, Exhibit A, Vallee (Docket No. 1), and Goldman (Docket No. 1) at 8. The only difference between the agreements signed by Plaintiffs in Goldman and Vallee was that leases for unit owners at Goose Rocks would run for a five-year period while leases at Shawmut would run for a two-year period, to end when the construction was scheduled to be completed and the Chalet, with its existing condo units, was slated to be torn down. See Waterman Deposition, Exhibit 2.

2. Buyback agreements
The buyback agreement provided that Waterman and Kearns would purchase units back from owners within a two-year period at Shawmut and within a five-year period at Goose Rocks. The buyback purchase price was set at a fixed amount calculated to equal the original purchase price paid by the unit owner plus "a 20% annual return on the 20% downpayment of your original purchase." Id., Option I at ¶ 3. See also Contract for the Purchase and Sale of Real Estate, Exhibit B, Vallee (Docket No. 1), and Goldman (Docket No. 1). Both the lease and buyback agreements included clauses that gave unit owners the option to cancel the agreements upon thirty days notice. But as Plaintiffs note, cancelling the buyback agreement for Shawmut purchasers would not have enabled them to hold on to their existing units because the Chalet building was to be torn down. Instead, purchasers would have to trade in their units for units in the newly constructed buildings and would have to pay for any difference in the fixed buyback price of their old units and the market value of the new units. See Waterman Deposition, Exhibit 2.
Purchasers who declined to elect the lease/buyback option were presented with a separate option of signing a management agreement whereby unit owners would split rental proceeds 60/40 with a Kearns/Waterman rental company. Only two Plaintiffs in the original actions chose this latter option; with one of those Plaintiff's claims having been dismissed and the other having reached a settlement with Defendants.[8]

C. Financial Collapse of Defendants' Operations
By the summer and fall of 1988, the real estate market in Southern Maine had fallen into serious decline. In November of 1988, Waterman and Kearns announced they could no longer pay operating expenses at the projects or adhere to other contractual obligations with unit purchasers. See Memorandum of Law in Support of Motion of First NH Bank for Partial Summary Judgment ("First NH Memorandum"), Goldman (Docket No. 89), and Pliskin (Docket No. 173) at 4. See also Jacqueline Goldman Affidavit, Exhibit A, Goldman (Docket No. 59). A little over one year later, in January and February of 1990, Plaintiffs filed these actions.
The parties' statements of material facts, filed pursuant to Local Rule 19(b), include additional information with respect to the financial dealings between Kearns, Waterman, and First NH; the interrelation of the financing of the development projects; the financial condition of Kearns, and Waterman's operations; and First NH's financing of unit purchases. These additional facts are not pertinent to the issues before the *664 Court  namely, whether the offer and sale of these condo units can be classified as "securities"  and hence will not be detailed here.

II. REQUIREMENTS FOR CHARACTERIZING OFFER AND SALE OF CONDO UNITS AS "SECURITIES"
Defendant First NH's Motion for Partial Summary Judgment focuses this Court's attention on one issue:
whether the transactions in which Plaintiffs purchased their Shawmut Inn and Inn at Goose Rocks units with the optional leaseback and buyback agreements were investment contracts and constituted the sale of securities, so as to render First NH Bank potentially liable for the violation of federal and state securities laws.
First NH Memorandum at 6. In assessing the nature of the transactions at issue, this Court will look to its most recent pronouncement of the law governing securities as set out in Lavery.[9] As detailed in that case, a "security" is defined as including an "investment contract" under federal securities laws as well as the state securities laws in question. Lavery, 792 F.Supp. at 851 & 860. In S.E.C. v. W.J. Howey Co., the Supreme Court has defined an investment contract to include:
[A]ny contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or third person.
Howey, 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946). Under Howey, Plaintiffs must show (1) an investment; (2) in a common enterprise; (3) with profits generated solely from the efforts of a third party. Plaintiffs clearly satisfy the first prong of the Howey definition because it is undisputed that the purchase of condo units was an investment. Satisfying the second part of Howey is more problematic. The standards which courts have applied in assessing whether parties have invested in a "common enterprise" are summarized below.

A. "Common Enterprise"
As pointed out in Lavery, neither the Court of Appeals for the First Circuit nor the United States Supreme Court have clarified what elements to look for in finding a "common enterprise" under Howey. District courts in the First Circuit and elsewhere have applied both a narrow vertical commonality and a horizontal commonality analysis for determining whether various transactions satisfy the definition of an investment contract. Narrow vertical commonality "finds a common enterprise when the investment manager's fortunes rise and fall with those of the investor." Lavery, 792 F.Supp. at 851 (quoting Savino v. E.F. Hutton & Co., 507 F.Supp. 1225, 1237 (S.D.N.Y. 1981)). Horizontal commonality, on the other hand, focuses on whether the assets from two or more investors are pooled into a single fund, usually accompanied by a pro rata sharing of profits from the joint enterprise. Hocking v. Dubois, 839 F.2d 560, 566 (9th Cir.1988), approved en banc, 885 F.2d 1449, 1459 (9th Cir.1989).
This Court found that it need not decide which approach to follow in Lavery because the lease/buyback agreements, executed upon the purchase of condo units at the Bellevue, failed to satisfy either test. With respect to vertical commonality, this Court emphasized the fact that investors were guaranteed rental and buyback payments that were fixed in amount regardless of the developers' profits or managerial expertise. Thus, Lavery plaintiffs were sheltered from the vagaries of the market such that their fortunes did not rise and fall with the fortunes *665 of the developers. Lavery, 792 F.Supp. at 853.
As for horizontal commonality, the Lavery Court found that there was no traditional pooling of investor interests and no pro rata sharing of profits and losses. See Howey, 328 U.S. at 295-97, 299-300, 66 S.Ct. at 1101-02, 1103 (where each investor bought a strip of land in an orange grove; all the oranges were pooled and sold; and investors received a share in the profits or absorbed losses equal to their share in land). In contrast, the lease and buyback agreements in Lavery cordoned off investors from the sharing of losses or profits amongst themselves and placed the risk on the developers. The fact that Kearns and Waterman may have ultimately pooled receipts from the sales and rental of units was not relevant to a finding of horizontal commonality, because the method in which Defendants ran their operations "was not part of an initial development plan that included Plaintiffs and the other purchasers." Lavery, 792 F.Supp. at 858. As the Court stated, the determinative factor was that:
[e]ach owner had his own unit, with its separate contracts with Kearns and Waterman, and each owner could make profits or sustain losses independent of the fortunes of the other purchasers.
Id. If Kearns and Waterman failed to adhere to their obligations, then each owner would have a remedy for contractual breach.

B. Application of Lavery Principles to the Facts of the Goldman and Vallee Cases
First NH argues that the lease/buyback agreements in the current actions do not differ in any material respect from the agreements found not to constitute securities in Lavery. First NH Memorandum, Goldman (Docket No. 89), and Pliskin (Docket No. 173) at 9-10. They point out that the lease and buyback agreements in these actions are virtually indistinguishable from those at issue in Lavery[10], and that the guaranteed payments preclude a finding that investors' fortunes were intertwined with that of Defendants or that their investments were pooled for a pro rata sharing in profits or losses. They argue that Plaintiffs are unable to identify any genuine issues of material fact to distinguish the present transactions from those at issue in Lavery and conclude that the precedent established in Lavery compels this Court to grant their Motion for Partial Summary Judgment on the securities claims. Id. at 11.
Plaintiffs counter that genuine issues of material fact distinguish the current actions from Lavery, and they urge the Court to "look beyond the four corners of the written documents in determining the existence of an investment contract...." Plaintiffs' Objection to First NH Bank's Motion for Partial Summary Judgment and Incorporated Memorandum of Law ("Plaintiffs' Memorandum"), Goldman (Docket No. 91), and Pliskin (Docket No. 175) at 3 (quoting Rodriguez v. Banco Central, 777 F.Supp. 1043, 1059 (D.P.R.1991), aff'd, 990 F.2d 7 (1st Cir.1993)). Plaintiffs argue primarily that they invested in Defendants' larger development plans and that the buyback option at the Shawmut differed significantly from the buyback option considered by this Court in Lavery.[11]*666 The Court will consider Plaintiffs' arguments in turn.

III. The Offer and Sale of Condo Units at the Shawmut Inn and the Inn at Goose Rocks

A. Investment in Overall Development Plans at the Shawmut
Plaintiffs in Vallee/Pliskin argue that investors did not simply purchase individual condominium units but invested in Defendants' overall plans to renovate the Shawmut Inn. While no significant development was underway at Goose Rocks, Goldman Plaintiffs argue that they, too, invested in development at the Shawmut because Defendants planned to provide shuttle buses between the two resorts such that renters at Goose Rocks could enjoy the restaurant and other facilities at the Shawmut located only a half mile away. Plaintiffs state, "[t]he value of the units at the Shawmut and the Inn at Goose Rocks was inherently bound up in the developers' and Banks' plan for reconstructing the Shawmut Inn." Plaintiffs' Supplemental Memorandum in Opposition to Defendant First NH Banks' Motion for Partial Summary Judgment ("Plaintiffs' Supplemental Memorandum"), Goldman (Docket No. 102), and Pliskin (Docket No. 200) at 8. By asserting that Plaintiffs risked their investments in a larger venture controlled by Defendants, Plaintiffs attempt to characterize the transactions as a "common enterprise."[12]
It is undisputed that Kearns and Waterman were planning to undertake major renovations at the Shawmut at the same time as they began marketing units at the Chalet and at the Inn at Goose Rocks. This factor, as Plaintiffs argue, may cast a different light on the transactions in question. In a recent case, the Court of Appeals for the First Circuit stated:
A security might exist if the defendants had promised, along with the land sales, to develop the community themselves. Then each buyer might be acquiring an interest not only in land but in a package of commitments that, taken together, could comprise a business venture harnessing the entrepreneurship of the promoter ... The promoter's commitment to build the community, in turn, could constitute the `common enterprise' financed jointly by the buyers.
Rodriguez v. Banco Central Corporation, 990 F.2d 7, 11 (1st Cir.1993) (citation omitted) (holding that the offer and sale of undeveloped lots in swamp land does not constitute securities where sellers did not represent to purchasers that they would directly undertake development of the area and where most purchasers bought the land for residential, not investment, purposes).
In Rodriguez, the Court of Appeals referred favorably to several cases that have taken this view including McCown v. Heidler, 527 F.2d 204 (10th Cir.1975). In McCown, the Court of Appeals for the Tenth Circuit held that summary disposition was not appropriate where the facts asserted by Plaintiffs might allow them to prove at trial "the sale of a contractual promise by [the developer] to improve the project, including the construction of a country club, an 18-hole championship golf course, stables, equestrian center, tennis courts, clubhouse and swimming pools." McCown, 527 F.2d at 209. The McCown court also noted that "without the substantial improvements pledged by [the *667 developer] the lots would not have a value consistent with the price which purchasers paid." Id. at 211 (citing Continental Marketing Corp. v. SEC, 387 F.2d 466, 470-71 (10th Cir.1967), cert. denied, 391 U.S. 905, 88 S.Ct. 1655, 20 L.Ed.2d 419 (1968).
Plaintiffs point to these cases to support their assertions, but they fail to provide any affidavits or other factual evidence indicating that Defendants' plans to develop the Shawmut played a role in Plaintiffs' decision to invest in the project. They simply state in briefs that "development of the Shawmut Inn ... played a far greater role in the purchase of the units" and that the value of the condo units at Goose Rocks and the Shawmut "was inherently bound up in the developer's ... plans for reconstructing the Shawmut." See Plaintiffs' Memorandum at 4 and Plaintiffs' Supplemental Memorandum at 8. Such "[f]actual assertions by counsel in motion papers, memoranda, briefs, or other such `self-serving' documents, are generally insufficient to establish the existence of a genuine issue of material fact at summary judgment." Nieves v. University of Puerto Rico, 7 F.3d 270, 276 n. 9 (1st Cir.1993) (citing Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir.1993), and Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir.1984)).
The simple fact that Defendants were planning to undertake major development is not enough, standing alone, to support a finding that investment in condo units at the projects constitute securities.[13] Instead, Plaintiffs must point to facts detailing the manner in which the transactions were presented "by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect." SEC v. C.M. Joiner Leasing Corp, 320 U.S. 344, 352-53, 64 S.Ct. 120, 124, 88 L.Ed. 88 (1943). These additional facts must provide Plaintiffs with an evidentiary basis allowing them to prove that Defendants represented their future development plans in a manner calculated to induce investment in the projects and, in essence, sold to Plaintiffs a contractual promise to carry through with their development plans to augment the value of their investments. McCown, 527 F.2d at 208-09. See also Aldrich v. McCulloch Properties, 627 F.2d 1036, 1039 (10th Cir.1980) (holding that complaint, which states that defendants encouraged purchases by promising investors that their lots would increase in value because of defendants' development activities, sufficiently alleges the existence of an investment contract for the purposes of maintaining an action under federal securities laws). As the Court of Appeals for the First Circuit stated in Rodriguez, "[a] security might exist if the defendants had promised ... to develop the community themselves." Rodriguez, 990 F.2d at 11 (emphasis added).
Plaintiffs fail to point to facts indicating that Defendants made any such promise. Instead, the evidence before the Court strongly indicates that guarantees provided in the lease/buyback agreements, which tended to fully insulate the investor from any economic risk resulting from the purchase of units, not promises of future development, were at the core of the parties' bargain. Plaintiffs' Complaints make no mention of development plans but describe the transactions in the following terms:
[Defendants] ... represented and promoted [Goose Rocks/the Shawmut Inn] condominiums to Plaintiffs as being an investment opportunity whereby Plaintiffs would purchase condominiums ... then immediately lease the condominiums back to Atlantic Hospitality, Inc. (an entity owned and controlled by Kearns and Waterman) ... and would also then execute an agreement *668 to in the future sell the condominiums back to Kearns and Waterman....
First Amended Complaint, Goldman (Docket No. 2) at ¶ 11, and Third Amended Complaint, Vallee (Docket No. 121a) at ¶ 10.
There is evidence in the record indicating that Defendants sent a letter to potential investors describing their plans to create a "world class" resort on the property and inviting investors to purchase units at the Chalet "as an opportunity to buy at the `ground floor' in an exciting and unique project." Waterman Deposition, Exhibit 1. Those who responded to this mailing were given additional materials that detailed the lease/buyback options at the Shawmut. Id. Exhibit 2. Plaintiffs, themselves, assert that Kearns and Waterman used these latter materials that discussed the two management options "as the basis for the sales pitch" at all scheduled meetings with potential purchasers. Plaintiffs' Objection to Defendant's Statement of Material Facts ("Plaintiffs' Objection"), Goldman (Docket No. 92), and Pliskin (Docket No. 176) at 4-5. An affidavit in the record submitted by Plaintiff Richard Robbins further supports this assertion. Affidavit of Richard Robbins, Vallee (Docket No. 63). Robbins states that he decided to purchase a unit at the Shawmut based on conversations that he had with Defendant Kearns. Robbins describes these conversations as involving Kearns' descriptions of the lease/buyback agreements with no mention of any future development plans. As the affidavit indicates:
With assurances from Kearns that this was a no lose, all win investment opportunity, I purchased a unit at the Shawmut Inn ... I would not have purchased the unit without the Rental and Buy Back Agreements. I considered the two Agreements to be part of one investment package.
Affidavit of Richard Robbins at ¶¶ 4-5 (emphasis added). In summary, Plaintiffs' allegations in the Complaints, their statement of material facts, and other evidence in the record highlight the centrality of the very elements of these transactions that were found in Lavery to bar a conclusion that the purchases constituted securities.
Further, Plaintiffs fail to object to Defendants' characterization of their marketing of units at the Shawmut and Goose Rocks in which future development plans played no role. Kearns and Waterman describe their strategy for attracting investors as focusing on the coastal location of the projects, the reasonable price of the hotel-condo units, and appreciation in value of the individual units from general market appreciation. Waterman's and Kearns' Affidavits, Vallee (Docket Nos. 78-9) at ¶ IV, as referred to in Defendant First NH Bank's Statement of Material Facts, Goldman (Docket No. 88), and Pliskin (Docket No. 172) at 3-4. Defendants' use of future development plans to induce investment is wholly absent from this description. Pursuant to Local Rule 19(b)(2), the Court deems this assessment to be admitted because Plaintiffs have failed to controvert it. Hence, while Plaintiffs claim that they were investing in Defendants' larger development plans, the record before the Court provides no basis for a fact finder to conclude anything other than that such plans were of incidental concern in these transactions. The only conclusion possible on the record made is that the parties focused almost exclusively on the guarantees against risk provided by the lease/buyback agreements.

B. Buyback Agreements at the Shawmut Inn
The Vallee Plaintiffs also argue that the nature of the buyback agreements at the Shawmut differed in a material respect from the buybacks in Lavery when viewed in the context of Defendants' overall development plans at the Shawmut. Plaintiffs point out that Defendants planned to tear down existing condo units at the Chalet by the time they exercised the buyback option. Plaintiffs' Objection, Goldman (Docket No. 92), and Pliskin (Docket No. 176) at 5. If Vallee Plaintiffs opted out of the buyback, they could not keep their original units, but would have had to trade them in for units at newly renovated buildings while paying any price differential between them.
Construing these facts most favorably to Plaintiffs might support a finding of vertical commonality because investors at the Chalet *669 were dependent upon the success of Defendants' future development plans to create valuable units in the new buildings in order to make opting out of the buyback plan a valid option. But Plaintiffs give no indication that they paid more than market value for their Chalet units and they were not guaranteed an even exchange for the units in the new development when the changeover would take place. These facts militate against a finding that they invested in Defendants' speculative venture in a manner satisfying the requirements of vertical commonality. Even though the nature of the buybacks differed, Plaintiffs' fortunes were still not interwoven with Defendants' financial success. If the development was successful and Defendants' profits went up, Plaintiffs would have to pay the differential in price between their Chalet units and the new units. If the development was unsuccessful and Defendants' losses mounted, Plaintiffs could still exercise the buyback option at a guaranteed price.
This Court is unable to determine any other manner in which the differences in the buyback option would support a finding that the transactions of Vallee Plaintiffs constituted a security. Plaintiffs give the Court no direction in this matter. Plaintiffs state merely that:
the necessity of having control over the Chalet building when the time came to tear it down might cause the Court to construe Kearns' and Waterman's rights under the buyback contracts differently with respect to the Shawmut Plaintiffs.
Plaintiffs' Memorandum at 4 (emphasis added). The possibility that tearing down the Chalet building "might cause" this Court to construe Defendants' rights differently is not sufficient for withstanding this Motion for Partial Summary Judgment in which First NH has argued that no genuine issues of material fact distinguish the transactions in Goldman and Vallee from the transactions in Lavery. Once the movant has pointed to "an absence of evidence to support the nonmoving party's case," Celotex, 477 U.S. at 325, 106 S.Ct. at 2554, the burden shifts to Plaintiffs, who "must adduce specific, provable facts demonstrating that there is a triable issue":
`The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.'
Brennan v. Hendrigan, 888 F.2d at 191-92 (emphasis added) (quoting from Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d at 181). Given this burden, Plaintiffs have failed to prove that distinctions between the buyback agreements in Vallee/Pliskin raise a genuine issue of material fact that should be decided at trial. Plaintiffs in Goldman and Vallee/Pliskin have been unable to point to any genuine issues of material facts to distinguish these lease/buyback agreements from the agreements at issue in Lavery. Based on the legal analysis in Lavery, the recent Rodriguez decision issued by the Court of Appeals for the First Circuit, and a host of other cases dealing with the definition of investment contracts under the securities laws, this Court finds that as a matter of law, the transactions in the current actions, with the optional lease and buyback agreements, do not constitute the sale of securities under federal or state law.
Accordingly, it is ORDERED that Defendants' Motion for Partial Summary Judgment on Counts I, II, III, V, VI, VII, and VIII in Goldman and Vallee/Pliskin, which base liability on the violation of federal and state securities laws, be, and it is hereby, GRANTED.
So ORDERED.
NOTES
[1]  These actions were stayed in May 1991 as to Defendant Waterman following his filing for bankruptcy relief under Chapter 7. See Letter from Defendant James Waterman, Pliskin (Docket No. 140). Proceedings appear from this Court's file to still be stayed with respect to that Defendant.
[2]  First N.H. Mortgage Corporation provided the financing for the purchase and development of the real estate projects and First N.H. Banks Granite State financed many of the individual condominium purchases, including those of the remaining Plaintiffs in the Vallee case. Jacqueline and Albert Goldman, who remain as Plaintiffs in the Goldman case, received financing for their unit purchase from another bank not affiliated with First NH Banks. See Defendant First NH Bank's Statement of Material Facts, Goldman (Docket No. 88) at 8.
[3]  First NH Mortgage Corporation and First NH Banks Granite State were previously subsidiaries of First NH Banks, Inc. and were originally named as Defendants in these actions. Defendant First NH Bank, the successor corporation, has now taken the place of the above-named Defendants in this litigation. Plaintiffs also named Ralph Bruno and Port Resort Realty as Defendants in the Pliskin and Vallee cases. Bruno acquired the Shawmut Inn from Kearns and Waterman through his company, Port Resort Realty, and purportedly assumed all of the obligations and liabilities of Kearns and Waterman. Proceedings were stayed against Bruno and Port Resort on May 28, 1991, after Port Resort filed for bankruptcy under Chapter 11. See Motion of Port Resort and Order on Motion, Pliskin (Docket Nos. 117 and 137). Port Resort has since been dismissed from the action, Motion to Dismiss and Endorsement (Docket Nos. 195 and 195-1), because its obligations to Plaintiffs were satisfied pursuant to the terms of the Amended Joint Plan of Reorganization confirmed by the U.S. Bankruptcy Court. A final Defendant, Atlantic Title Company, was dismissed in the Pliskin and Vallee cases on May 22, 1991. Motion to Dismiss Claims of Atlantic Title Company, Pliskin (Docket No. 131).
[4]  While Lorraine Kavanaugh remains as a Plaintiff in the Vallee case, she did not sue Kearns, Waterman or First NH, so her claims are not involved in the pending motion. See Third Amended Complaint, Vallee (Docket No. 121a).
[5]  While all Plaintiffs have apparently settled in the Pliskin case, the Court will still refer to that case name in identifying many docket references because Pliskin and Vallee were consolidated for discovery purposes in September of 1990. See Plaintiffs' Motion to Consolidate, Vallee (Docket No. 33). Beginning in February of 1991, docket entries were discontinued in Vallee and entered solely on the Pliskin docket.
[6]  The Lavery decision became final when plaintiffs withdrew their appeal to the Court of Appeals for the First Circuit on November 30, 1992.
[7]  The counts at issue in this Motion for Partial Summary Judgment are Counts I, II, III, V, VI, VII, and VIII, First Amended Complaint, Goldman (Docket No. 2), and Third Amended Complaint, Vallee (Docket No. 121a). Count I alleges that all Defendants violated sections 77e, 77j, 77l, 77o, and 77q of the Securities Act of 1933 by failing to register the sale of condominium units as securities and to provide potential purchasers with financial and other information required under the Act and by providing materially misleading information to purchasers of securities, 15 U.S.C. §§ 77e, 77j, 77l, 77o, and 77q. Count II alleges that all Defendants violated sections 78j and 78t and corresponding regulations of the Securities and Exchange Act of 1934 by withholding material information and otherwise perpetrating fraud in the sale of the condominium units, 15 U.S.C. §§ 78j and 78t and 17 C.F.R. § 240.10b-5. Count III alleges that First NH Bank violated the above provisions by aiding and abetting the conduct of Kearns, Waterman, Bruno and Port Resort. Counts V, VI and VII allege that all Defendants violated the Maine, New Hampshire, and Massachusetts analogs of the federal securities laws, 32 M.R.S.A. § 10101 et seq, N.H.Rev.Stat.Ann. § 421-B:1 et seq, and Mass.Gen.Laws Ann. ch. 110A, respectively. Count VIII alleges that First NH violated the above-mentioned state securities laws by aiding and abetting the conduct of the other Defendants.
[8]  Plaintiffs Peter Haroutian and LCM Associates, who were initially parties to the Vallee case, signed agreements to split rental income with Kearns and Waterman. Haroutian's claims were dismissed pursuant to a Motion by First N.H. as a sanction for failing to attend the final pretrial conference in Pliskin/Vallee and for otherwise failing to prosecute his action. First NH Bank's Motion to Dismiss Claims of Peter Haroutian, Pliskin (Docket No. 192). Plaintiff LCM Associates, through its attorney, has informed the Court that LCM has settled its claims with Defendants.

Plaintiffs filed opposition papers to First NH's Motion for Partial Summary Judgment prior to the settlement and dismissal of Haroutian's and LCM's claims. In opposing Defendants' Motion, Plaintiffs argued, in part, that Haroutian's and LCM's rental-sharing agreements would likely constitute securities under federal and state laws. Because these Plaintiffs are no longer parties to these actions, the Court need not consider the facts surrounding their transactions with Defendants or the arguments raised in support of their claims. The remaining Plaintiffs would not, in any event, benefit from any determination made in favor of Haroutian and LCM because the circumstances of their transactions do not implicate any rental-sharing elements.
[9]  Plaintiffs argue that the necessary prerequisites for issue preclusion or collateral estoppel have not been satisfied to justify using the Lavery decision to bar Plaintiffs from raising claims of securities law violations in the current actions. See Plaintiffs' Objection to First NH Bank's Motion for Partial Summary Judgment and Incorporated Memorandum of Law in Pliskin (Docket No. 175) and Goldman (Docket No. 91). The Lavery decision, however, in no way precludes Plaintiffs' securities law allegations but merely clarifies, on a precedential basis, the rules of law that this Court will apply in assessing whether Plaintiffs here point to a sufficient set of facts, established in the record of the present cases, that would allow them to prove at trial that the transactions in question constitute securities.
[10]  One of the only differences between the agreements are that the amounts of the lease and buyback payments at the Shawmut and Goose Rocks are much higher, reflecting the more prestigious locations of these projects at Kennebunkport, where then-President Bush spent his vacation time. The lease agreements in Goldman and Vallee guaranteed monthly payments of $718.73 to Plaintiffs at Goose Rocks, which was located a half mile from the beach, and $1,194.83 to Plaintiffs at the Shawmut, which was located on the ocean. Exhibit A (Docket No. 1) in Goldman and Vallee. The buyback agreements guaranteed Goose Rocks Plaintiffs $104,703.00 for their units on or before April 8, 1993 and Shawmut Plaintiffs $163,200.00 for their units on or before February 9, 1990. Exhibit B (Docket No. 1) in Goldman and Vallee.
[11]  Plaintiffs also raise another factual issue that involves Defendants' alleged promise to market quarter shares at the Inn at Goose Rocks by emphasizing the interrelationship of that project with future improvements at the Shawmut. Plaintiffs' Supplemental Memorandum, Goldman (Docket No. 102), and Pliskin (Docket No. 200) at 8. (Quarter sharing involves dividing a condominium into four equal fee simple estates which are then sold separately). Plaintiffs offer no facts to indicate whether the promised marketing of quarter shares was significant to their decisions to invest in the Goose Rocks units. Nor do Plaintiffs give any explanation of why the promised marketing of quarter shares could transform the transactions in question into securities. In addition, they fail to controvert Defendants' Statement of Material Facts which minimizes the role played by the quarter-share concept, indicating that Kearns and Waterman considered the idea but decided against it when the Bank declined to provide financing to potential quartershare buyers. Defendant First NH's Statement of Material Facts, Goldman (Docket No. 88), and Pliskin (Docket No. 172), ¶ 13 at 7. Because there is no factual support for this alleged distinction, the Court dismisses it without further discussion.
[12]  In Lavery, this Court rejected such an argument because renovations at the Bellevue project were virtually complete and promises to finish a health club or minor room renovations were not found to be "the crux of the prospective value of Plaintiffs' investment." Lavery, 792 F.Supp. at 859. In addition, the fact that Defendants discussed development plans at the Shawmut with Bellevue investors as well as the use of all three projects  Shawmut, Bellevue, and Goose Rocks  to attract and cater to renters was too attenuated to convince the Court that Plaintiffs at the Bellevue "were jointly buying into that development in any significant sense." Id.
[13]  In Woodward v. Terracor, 574 F.2d 1023 (10th Cir.1978), decided just a few years after McCown, the Court of Appeals for the Tenth Circuit did not find a common enterprise where plaintiffs purchased lots from a developer who planned to build shopping centers, health and cultural facilities, transportation facilities, and recreational areas. As the Court stated:

[Defendant] was involved in a business venture. [Defendant] was developing a new residential community. As part of its venture [defendant] sold lots to persons who either intended to build houses thereon, or intended to resell to others who would so build. But the mere fact that plaintiffs bought lots from [defendant] does not mean that by such acquisition they were thereafter engaged in a common venture or enterprise....
Id. at 1025 (emphasis added).