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UNITED SAV. BANK v. ROSE

November 5, 1990

UNITED SAVINGS BANK, Plaintiff,
v.
RICHARD N. ROSE, ET AL., Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.

MEMORANDUM AND ORDER

 This is one of the many common law and statutory actions removed to this Court in recent months from various state courts across the country pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"). Defendants move to remand the case to the state court where it was filed. The motion presents an issue litigated repeatedly by dozens of lawyers in this Court over the past six months. See, e.g., Piekarski v. Home Owners Savings Bank, 743 F. Supp. 38 (D.D.C. 1990); Asbury v. Germania Bank, 752 F. Supp. 503 (D.D.C. 1990); Kirby v. Mercury Savings and Loan Ass'n., C.A. 755 F. Supp. 455 (D.D.C. 1990).

 The complaint was filed May 23, 1990, in the Circuit Court for Fairfax County, Virginia. Plaintiff United Savings Bank, a Virginia banking corporation, sued Richard N. Rose, a Virginia resident and general partner of a Virginia limited partnership, and three other partners who are Georgia residents for payment of a note under a guaranty agreement. The guaranty was made pursuant to a loan from United Savings Bank that the limited partnership used to acquire real estate in Virginia. Defendants filed counterclaims.

 On July 31, 1990, the Office of Thrift Supervision appointed the federally-chartered Resolution Trust Corporation ("RTC") as receiver of the bank and as conservator of the assets of the bank's successor in interest. On September 27, 1990, RTC removed this action to this Court pursuant to FIRREA, 12 U.S.C. section 1441a(1)(3), asserting that this Court has original jurisdiction pursuant to 12 U.S.C. section 1441a(l)(1). Defendants claim that removal on this basis was not permitted by FIRREA.

 Section 1441a(l) of 12 U.S.C. states:

 
(1) Notwithstanding any other provision of law, any civil action, suit, or proceeding to which the [RTC] is a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction over such action, suit or proceeding.
 
(2) The [RTC] shall be substituted as a party in any civil action, suit, or proceeding to which its predecessor in interest was a party with respect to institutions which are subject to the management agreement dated February 7, 1989, among the Federal Savings and Loan Insurance Corporation, the Federal Home Loan Bank Board, and the Federal Deposit Insurance Corporation.
 
(3) The [RTC] may, without bond or security, remove any such action, suit, or proceeding from a State court to the United States District Court for the District of Columbia, or if the action, suit or proceeding arises out of the actions of the [RTC] with respect to an institution for which a conservator or a receiver has been appointed, the United States district court for the district where the institution's principal business is located. The removal of any action, suit, or proceeding shall be instituted --
 
(A) not later than 90 days after the date [RTC] is substituted as a party, or
 
(B) not later than 30 days after the date suit is filed against [RTC], if such suit is filed after August 9, 1989.

 Defendants make two arguments against removal. First, they argue that the phrase "any such action" in section 1441(l)(3) refers only to actions designated immediately above in section 1441(l)(2) -- i.e. only those involving institutions subject to the referenced 1989 management agreement. It is not clear to defendants whether United Savings Bank is such an institution. Therefore, defendants argue, section 1441(l)(3) did not permit removal of this action.

 However, it appears from a fair reading of the statute as a whole that the phrase "any such action," despite the arrangement of paragraphs, refers to those actions described in section 1441a(l)(1), i.e. any case where the RTC is a party, rather than the subset of such cases described in section 1441a(l)(2). Defendants suggest no reason why Congress would have limited RTC's removal rights under FIRREA to those cases where RTC's predecessor in interest, FSLIC, was a party prior to FIRREA's enactment. Moreover, section 1441(l)(3)(B) expressly contemplates removal by RTC of cases filed after the date FSLIC was replaced and therefore not covered by the 1989 management agreement. The unfortunate arrangement of paragraphs is simply one of several indications that FIRREA is a less than precisely worded statute.


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