No. 95-2626.
Decided June 11, 1996.
Benjamin J. Ockner, Michael H. Diamant, M. Collette Gibbons, Kahn, Kleinman, Yanowitz Arnson, Cleveland, OH, for One Fourth Street North, Ltd.
Anne Spencer Mason, Mason Associates, PA., Clearwater, FL, Leslie Randolph, Resolution Trust Corp., Washington, DC, for Resolution Trust Corp. and Florida Federal Sav. Bank, F.S.B.
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.
Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by designation.
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
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
12 U.S.C. § 1821 101-73 103 Stat. 183 12 U.S.C. § 1821 See 12 U.S.C. § 1821 ORDERED 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 (j), the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), Pub.L. No. , . 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." (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 own procedures or behaves unlawfully. 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. (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. at Tampa, Florida on this 11th day of April, 1996. /s/ Steven D. Merryday ------------------ STEVEN D. MERRYDAY United States District Judge