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April 16, 1992


The opinion of the court was delivered by: LOUIS H. POLLAK

Certain motions have already been addressed. What remains to be considered is first the motion of RTC for summary judgment, which contends that all of the counterclaims interposed by the defendants are matters with respect to which this Court is deprived of subject matter jurisdiction by virtue of those provisions of FIRREA, which undertake to locate in RTC's administrative processing primary authority for the adjudication of claims against RTC in its role as receiver, or, as RTC views it, conservator as well.

 The focus of the contention is, of course, the statutory language 1821(d) and its many subparts of Title 12. It is clear that that statutory language does contemplate that the place where, in the first instance, claims should be asserted is RTC. And the form of the statutory direction is jurisdiction.

 1821(d)(13)(D) starts out, "Except as otherwise provided in this subsection, no court shall have jurisdiction over, (i), any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the corporation has been appointed receiver, including assets which the corporation may acquire from itself as such receiver; or, (ii), any claim relating to any act or omission of such institution or the corporation as receiver."

 The counterclaims in this case are counterclaims which are directed at RTC in its capacity as receiver for Nassau Savings and Loan Association, and as conservator for Nassau Federal Savings and Loan Association. The distinction evidently arises from the particular history which gives frame to this litigation.

 RTC was appointed receiver of Old Nassau, that is to say Nassau Savings and Loan, on March 8th, 1990. On the same date -- I think it was the same date -- the Office of Thrift Supervision, which had appointed RTC as receiver, provided for the creation of New Nassau, Nassau Federal Savings and Loan, and appointed RTC as conservator for New Nassau. RTC did not become receiver for New Nassau, which it now is, until August 23 of 1991.

 We have today provided for the substitution of RTC as receiver for New Nassau -- that is to say, Federal Savings and Loan, in an order that has already been determined. That clerically brings the caption into accord with the actual history of the litigation.

 The position of RTC is that a proper understanding of FIRREA precludes the exercise of subject matter jurisdiction by a court, this court, or any court of claims against RTC, whether as receiver or as conservator. That argument, made at some length and with considerable skill this morning by counsel for RTC, confronts in this Circuit the uncomfortable fact that our Court of Appeals ruled to the contrary just last year in Rosa versus Resolution Trust Corp., 938 F.2d 383.

 The distinction between claims made against RTC as receiver and RTC as conservator, stated in Rosa, is, of course, binding in this court. As counsel for RTC has pointed out, there is very respectable contrary authority reflected in the Court of Appeals' decision in Mustang, a decision of the Tenth Circuit. I think it was the Tenth Circuit. I mean no disrespect to the Tenth Circuit in saying that I'm not at liberty to look to it for wisdom. It is a fine circuit, as all circuits are beyond the pale of this circuit; but, by definition, not as good a circuit as our own.

 So I will continue to follow Rosa until it is divested of authority by the Supreme Court, or until such time as the Third Circuit itself reviews the problem in what would have to be an en banc proceeding.

 Suffice it to say, the issues are real ones, and the analysis deployed by the Third Circuit in Rosa is, to the extent that a trial judge is entitled to have an opinion, is indeed a respectable and comprehensible analysis as the statutory framework. But the analysis adopted by the Tenth Circuit and deployed by the RTC in argument today is certainly plausible and deserving of serious consideration of those jurisdictions that have not yet resolved the matter one way or another.

 Now, that means that for our case, not withstanding that RTC is now the receiver for New Nassau, having been appointed to that position on August 23, 1991, the counterclaims, which were addressed to RTC in its former role as conservator, are not claims which this Court following Rosa lacks jurisdiction on.

 We wind up, that is to say, with a bifurcation of these counterclaims, stripping away those counterclaims that run to RTC as receiver for Old Nassau, and maintaining jurisdiction over those that run against RTC initially as conservator and now as receiver for New Nassau.

 Now, it may be reasonably asked why, if RTC is now at last cloaked in the majesty of a receivership for New Nassau, why that doesn't cure the problem, and cure the problem from RTC's point of view and divest this Court of all jurisdiction with respect to the counterclaims.

 The answer lies again in Rosa. What the Court of Appeals in Rosa determined is that the temporal perspective that is controlling is the status of RTC at the time of the filing of the claim against RTC. That, again, is a construction of the FIRREA statute which RTC resists, but, of course, it is a construction by which this Court is bound.

 I am referring here to the analysis contained on page 392 of 938 F.2d in the paragraph which closes with footnote 12. The text statement is, "the issue under the bar is whether the --" let me read the whole paragraph. "The language of the bar simply states that it applies where there is an institution for which RTC 'has been' appointed receiver. Thus, the issue under the bar is whether at the time the case came before the district court, RTC had been appointed receiver of the institutions." In Rosa itself, RTC was a defendant, not as it is here, a plaintiff.

 It is, of course, the view of the defendants in this case that the whole Rosa analysis, and the statutory basis for preclusion of judicial jurisdiction, unless and until the administrative pathway has been followed, is inapplicable here, because here the defendants are merely counterclaiming. They didn't want to be in court at all. They are not initiating the judicial action, as was the case with the claimants against the RTC in Rosa. That is a distinction which one can understand on an emotional level -- that is to say, the defendants here just want to be left alone because they are occupying property that RTC wants, and that puts them in a different posture from the plaintiffs in Rosa.

 However that may be, it is a distinction which strikes me as having no footing in the statutory framework at all. The same reasons that make for giving RTC primary jurisdiction over claims against it when it is operating in its receiver (or, as it would say, conservator) capacity, are operative whether the claims are asserted by way of point or by way of counterclaim.

 In either event, Congress contemplated that the RTC should have responsibility for administrative review of claims against it, recognizing that there would be hundreds, perhaps thousands, of claims arising out of any particular assumption of authority by RTC over a failing financial institution. And that RTC has responsibility for making a fair disposition of claims which, from the point of view of the individual claimant, are individual. But from the point of view of the administering agency, RTC has a universe of claims which it is statutorily obligated to treat equitably.

 So I must, of course, in my view, reject the proposition, defendants' proposition, that the Rosa analysis does not apply to divest the Court of jurisdiction in a situation in which it is the defendants' counterclaim rather than the plaintiff's claims that are at issue.

 However -- and here I go back to the matter of chronology and the distinction between conservatorship and receivership. Though it is the case that the Court of Appeals in Rosa look to the date of the filing of the complaint as the date on which to determine RTC's status -- I have noted that RTC takes issue with that legal position, but I am, of course, bound to follow Rosa.

 Though it is the case that the Court of Appeals so determined in Rosa, it strikes me that it is consistent with Rosa to conclude that in a case which is in our posture, in which the claims against RTC are asserted by way of counterclaim rather than in an original complaint, the dispositive temporal ingredient should be not the date of the filing of the complaint, but the date of the filing of the counterclaim. I see nothing in Rosa that militates against that.

 Now, if we examine the calendar in that respect, it appears that RTC was appointed receiver for New Nassau on August 23, 1991. Now, that date antedates the filing of the amended answer to the counterclaim that is before the Court right now. That was filed on November 6th, 1991. However, the controlling date, in my judgment, must be the date of the filing of the original answer and counterclaim. That date, as I understand the record, was February 4, 1991. That is the date that I view as controlling in this instance.

 Accordingly, I determine that this Court has jurisdiction to entertain those aspects of the defendants' counterclaims that run against RTC as conservator for New Nassau, Nassau Federal, as of the filing of the original counterclaim on February 4, 1991.

 I had not undertaken to dissect the pleading to separate out just what claims would be preserved under that concept. I think it will become prudent for the defendants to replead, to file an amended counterclaim that excises anything at all directed at RTC as receiver for Old Nassau, and preserves only those claims asserted as against RTC as conservator for New Nassau as of February 4, 1991.

 If the amended counterclaim enlarges without changing the nature of the original counterclaim as directed against RTC as conservator for New Nassau, that seems to me simply a matter of natural amendment. But the jurisdictional line is to be drawn as I have stated it. And, as I say, I think sort of to clear matters up from here forward, a repleading of the counterclaim would be in order.

 Now, RTC has sought, in the alternative of a jurisdictional dismissal of the entire group of counterclaims, that this Court may, in its misguided inherence to Rosa, as the RTC would see it, maintain jurisdiction over, be stayed for 180 days so that the counterclaimants can have recourse to RTC's administrative processes. Quite obviously, RTC regards this as a very second level in the way of proceeding.

 They think it's entitled to dismissal, but if a court thinks otherwise, RTC points out that a stay is an arrangement that has some footing in the statute, and has been judicially pursued. Relevant references are 1821(d)(6)(A), and also 1821(d)(5)(A)(1).

 Judge Sarachan in Palm Beach Federal pursued just this pathway. It's Palm Beach Federal Savings Bank versus RTC, Civil Action Number 91-1347. That was an opinion of Judge Sarachan handed down on November 22nd of 1991.

 Defendants have no enthusiasm for going that route. They have very little expectation that would be fruitful.

 I decline to enter into any discussion of the adequacy of the administrative remedy. I take it, as an article of faith, that a federal agency will undertake to carry out its statutory obligations. The rationale for such a stay is, I think, clear enough. It is a rationale that is supported in a very jurisdictional analysis that we've already had reference to. It would be supportive of the administrative scheme for RTC to be able to consider administratively, along with other claims, the claims pressed by the present defendants.

 So I will direct a stay for the purposes proposed, that is to give the defendants an opportunity to go to RTC, and for RTC to take to process those counterclaims. In doing so, I will strip the counterclaims, probably their equitable components. The counterclaims seek specific performance of what is alleged to be a contract for the sale of Rebel Hill, which has not been performed by Old Nassau, and which RTC, in the counterclaim's view, has compounded the illegal breach of.

 I conclude that the request for equitable relief of that kind is an interference with RTC's statutory authority to handle its responsibilities as receiver and/or conservator. That, I think, is the clear instruction of Section 1821(j), and the statutory instruction has been followed by our Court of Appeals again in Rosa, 938 F.2d at 398.

 The fact that the particular relief sought by these particular counterclaimants is perceived by them as a modest interference with RTC's operations cannot, in my view, draw the sting from the fact that the relief sought would, if granted, be a direction to RTC as to what to do or not do with what RTC regards as an asset now in RTC's custody.

  As I read FIRREA, I lack judicial power to entertain any such prayer for equitable relief. The issue treated as one of power does not depend on the reasonableness of the legitimacy of what it is that RTC proposes to do or not do, which is the position taken by defendant counterclaimants. The moment I enter the tepid waters of determining reasonableness or legitimacy, I think I am undertaking exactly that superintendence of RTC's business judgment, which Congress has instructed me to refrain from doing.

 The final issue is whether I should, as requested by RTC, exercise direct withdrawal of the lis pendens which has been filed by defendants with respect to Rebel Hill. It is clear from the argument today -- there was consensus -- that the filing of the lis pendens operates as a substantial drag on the marketability of Rebel Hill.

 RTC proposes to dispose of Rebel Hill in the marketplace, and that, of course, is exactly what the counterclaimants don't want to have happen. They seek judicial direction that Rebel Hill be transferred to them. I've already addressed the reasons why exercising any such authority by me is inconsistent with the statutory scheme. I think only a logical extension of my conclusions with respect to my lack of authority to entertain an application for equitable relief of the sort requested, that I conclude that the lis pendens is not viable.

 There are various pieces of the FIRREA statute which, without speaking to a lis pendens in so many words, certainly offers direction as to what the principles of the statute are.

 12 USC Section 1821(d)(13)(C) states, "No attachment or execution may issue by any court upon assets in the possession of the receiver."

 Section 1825(b)(2) tells us that "no property of the corporation shall be subject to levy, attachment, garnishment, foreclosure or sale without the consent of the corporation; nor shall any involuntary lien attach to the property of the corporation."

 That is statutory language which, at least in its genesis, was clearly aimed at hostile -- at attachments and levies and so forth that were supportive of tax collection. But by amendment as of December of last year, the references to taxation have been eliminated, and it is at least a plausible argument that that was a legislative direction, that the statutory language should be viewed more comprehensive.

 I appreciate that the argument could be made that the failure of FIRREA in the sections I've referred to, or other cognate sections that refer expressly to lis pendens as a device that was incompatible with the RTC's exercise of its responsibilities, would give footing for the proposition that Congress did not mean to disturb the lis pendens. I think that's a plausible, but ultimately unpersuasive, argument. It's hard to imagine that even if Congress could direct its full time to the drafting of a statute of this kind, it could or it even would be sensible for it to undertake an encyclopedic reference to every particular device to be found in the armament of every one of our American jurisdictions.

 Certainly, this is cognate with a lien, and the spirit of the statute tells us that the lis pendens, as the marketplace would recognize, would be a significant impediment if it were to remain annexed to the Rebel Hill property.

 Basically, I think where I come to rest is that whether or not one is prepared to say that 1821(d)(13)(C) or 1825(b)(2), both of them taken together are statutory directives and oust the lis pendens, the statutory framework, taken as a whole, is an instruction that this is an area of law in which federal law has ousted state forums, and state processes are incompatible in their operation.

 The appropriate -- and I really regard it as controlling precedent here -- is the Third Circuit's instruction of last year in FDIC versus Shain, Schaffer and Rafanello, 944 F.2d 129. The very last point addressed by the Third Circuit in that case contained the following discussion:

 Although SS and R -- that's of course the acronym for the law firm Shain, Schaffer and Rafanello, the appellant. "Although SS and R have a valid retaining lien under New Jersey law, it cannot assert it against the FDIC, because federal law has displaced state remedies in this area. SS and R must, therefore, submit its claim for fees to the FDIC according to the procedure established by FIRREA. The district court therefore was justified in requiring SS and R to return the files for which SS and R's retaining lien attached."

 In cognate fashion, I conclude that the lis pendens filed by the defendants against the Rebel Hill property ought to be disallowed.


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