Bursik v. One Fourth Street North, Ltd.

United States Court of Appeals,

Eleventh Circuit.

No. 95-2626.

Paul D. BURSIK, Receiver,

Federal Deposit Insurance Corporation, as Statutory Successor to
Resolution Trust Corporation, as Receiver for Florida Federal
Savings Bank, F.S.B., and as Conservator for Florida Federal
Savings Bank, F.S.B., Plaintiff-Counterclaim-Defendant-Appellee,

Peoples Southwest Real Estate Limited Partnership, a Delaware
Limited Partnership, Plaintiff-Counterclaim-Defendant,

v.

ONE FOURTH STREET NORTH, LTD.; One Fourth Street North
Management, Inc., as the Sole General Partner of One Fourth Street
North, Ltd., Defendants-Counterclaim-Plaintiffs-Appellants,

Fox and Grove, Chartered, Incorporated; David J. Abbey, d/b/a
Fox and Grove, Chartered, Incorporated; Justice Corporation,
Defendants.

June 11, 1996.

Appeal from the United States District Court for the Middle
District of Florida (No. 91-201-CIV-T-23C); Steven D. Merryday,
Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and MILLS*, District Judge.

ORDER

RICHARD MILLS, District Judge:

The order of the District Court granting summary judgment in

favor of Appellee Resolution Trust Corporation, as receiver and

conservator, is adopted by this Court.

For the reasons set forth in the District Court's order, the

summary judgment is AFFIRMED.

APPENDIX

*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
 United States District Court Middle District of Florida Tampa
Division

Resolution Trust Corporation, as Receiver for Florida Federal
Savings Bank, F.S.B., and as Conservator for Florida Federal
Savings Bank, F.S.B., Plaintiff,

v.

One Fourth Street North, Ltd., et al., Defendants.

Case No. 91-201-Civ-T-23C
ORDER

Before the Court is the RTC's (1) motion for summary judgment

(doc. 57) and (2) supplemental motion for summary judgment or to

dismiss for lack of subject matter jurisdiction (doc. 91).

This claim arose out of the alleged breach of an agreement to

settle a foreclosure action brought by Florida Federal against the

defendants. The defendants counterclaimed that Florida Federal

failed to carry out the settlement agreement. Subsequently,

Florida Federal went into receivership, and the RTC, as the

receiver, assumed the suit. Later, the RTC assigned its interest

in the rights to the property in question to Peoples Southwest Real

Estate Limited Partnership, which continued to pursue the suit.

On February 1, 1994, the parties' stipulated partial agreement

and joint motion to dismiss was granted, and the plaintiff's claims

were dismissed (doc. 163). To the extent the RTC's motions (doc.

57 and 91) relate to the initial complaint, they are DENIED AS

MOOT. Furthermore, the RTC's original motion for summary judgment

(doc. 57) is redundant and, therefore, is also DENIED AS MOOT.

While the original claims are settled, the defendants'

counterclaim against the RTC remains. The counterclaim consists of

nine counts, of which the defendants explicitly ceased to pursue
four: IV, VII, VIII, IX (doc. 62, p. 6). Furthermore, the

defendants' Supplement to Pretrial Stipulation (doc. 79) explicitly

states that the defendants claim no damages. Consequently, Count

I, a claim exclusively for damages, has been voluntarily dismissed.

The remaining four counts request equitable relief against the RTC:

Count II requests enforcement of the agreement, Counts III and VI

request specific performance of the agreement, and Count V requests

an injunction against the RTC.

The RTC contends that the equitable counts remaining in the

defendants' counterclaim are barred by 12 U.S.C. § 1821(j), the

Financial Institutions Reform, Recovery, and Enforcement Act of

1989 ("FIRREA"), Pub.L. No. 101-73, 103 Stat. 183. 1 That section

states that "[e]xcept as provided in this section, no court may

take any action, except at the request of the Board of Directors by

regulation or order, to restrain or affect the exercise of power or

functions of the [RTC] as a conservator or a receiver." 12 U.S.C.

§ 1821(j). This provision has been interpreted to restrict

injunctions, and other equitable relief, against the RTC when the

RTC acts as a receiver or conservator, even if the RTC violates its

1
Many claims which arise against the RTC under somewhat
similar circumstances must pass muster under the common law
D'Oench doctrine, which is effectively codified at 12 U.S.C. §
1823(a). Twin Const., Inc. v. Boca Raton, Inc., 925 F.2d 378,
382-4 (11th Cir.1991); see Motorcity of Jacksonville, Ltd. v.
Southeast Bank, 39 F.3d 292, 298 (11th Cir.1994). However, the
Eleventh Circuit has held that "D'Oench does not aid the federal
banking authority where bilateral obligations appear in the
bank's records." Twin Const., Inc., 925 F.2d at 383. In this
case, both the original mortgage and the subsequent settlement
agreement were accepted by the parties in writing and both
contained bilateral obligations. Therefore, the claims in this
case are not affected by the D'Oench restrictions.
own procedures or behaves unlawfully.2
As stated expressly in the statute, Section § 1821(j) applies

only if the RTC is acting in its capacity as receiver. In this

case, the RTC was appointed receiver for Florida Federal. During

the events resulting in this action, the RTC was attempting to

protect or dispose of the assets of Florida Federal and, therefore,

was acting in its capacity as receiver for the institution. See 12

U.S.C. § 1821(d)(2)(B) and (E). Accordingly, because § 1821(j)

precludes the defendants from raising their equitable counts

against the RTC, the motions (docs. 57 and 91) are GRANTED as to

Counts II, III, V, and VI, which are DISMISSED WITH PREJUDICE.

The Court does not have the authority to enjoin the RTC in

relation to the transaction alleged in Count V of the counterclaim,

to enforce the settlement agreement as requested in Count II or to

order specific performance as requested in Counts III and VI.

2
While the Eleventh Circuit has not addressed this issue,
the circuits considering this issue have adopted this
interpretation. See 281-300 Joint Venture v. Orion, 938 F.2d 35,
39 (5th Cir.1991), cert. denied, 502 U.S. 1057, 112 S.Ct. 933,
117 L.Ed.2d 105 (1992); Ross v. RTC, 938 F.2d 383, 397-400 (3d
Cir.1991), cert. denied, 502 U.S. 981, 112 S.Ct. 582, 116 L.Ed.2d
608 (1991); In re Landmark Land Co. of Oklahoma, 973 F.2d 283
(4th Cir.1992); Gross v. Bell Savings Bank PaSa, 974 F.2d 403
(3d Cir.1992); Telematics International, Inc. v. NEMLC Leasing
Corp., 967 F.2d 703, 705-6 (1st Cir.1992); United Liberty Life
Ins. Co. v. Ryan, 985 F.2d 1320, 1328-9 (6th Cir.1993); National
Trust for Historic Preservation v. FDIC, 22 F.3d 469
(D.C.Cir.1994); Harkness Apartment Owners Corp. v. FDIC, No. 87
Civ. 7080, 1993 WL 138772 (S.D.N.Y. April 26, 1993), aff'd 999
F.2d 538 (2d Cir.1993); See also Shoreline Group v. Commonwealth
Fed. S & L Assn., No. 90-6703, 1991 WL 496658 1991 U.S.Dist.
LEXIS 20799 (S.D.Fla. Feb. 14, 1991); Broderick Mortgage Co. v.
RTC, No. 93-1300-Civ-T-21C, Dkt. 14 (M.D.Fla. Nov. 15, 1993);
Continental Bank v. Resolution Trust Corp., No. 92-131 (D.C.
April 27, 1993); Dade-Deerwood Assoc., L.P. v. RTC, No. 93-0834
(S.D.Fla. May 20, 1993).
ORDERED at Tampa, Florida on this 11th day of April, 1995.

/s/ Steven D. Merryday
STEVEN D. MERRYDAY

United States District Judge