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December 12, 1994

RESOLUTION TRUST CORPORATION, as Receiver for Perpetual Savings Bank, F.S.B., Defendant.

The opinion of the court was delivered by: STANLEY SPORKIN

 NVMercure Limited Partnership and its general partner, NVCommercial, Inc. ("NVMercure"), filed this lawsuit against Resolution Trust Corporation ("RTC") for judicial review of RTC's denial of Plaintiffs' claims for money damages pursuant to 12 U.S.C. § 1821(d) (6). This matter comes before the Court on Defendant RTC's motion to dismiss Count I of Plaintiffs' complaint which seeks damages for RTC's alleged breach of a contractual right of first refusal. Defendant RTC contends that Plaintiffs' contractual right of first refusal is preempted by 12 U.S.C. § 1821(d) (2) (G) (i) (11) to the extent that Plaintiffs seek to enforce that right against RTC. Defendant contends that because the right of first refusal is not legally enforceable against the RTC the right cannot be a basis for an award of damages.


 Plaintiffs' action relates to a 175 acre property located in Loudoun County, Virginia that is known as "Mercure Business Park" (hereinafter "Property"). In 1988, Perpetual Savings Bank FSB ("Perpetual") loaned Plaintiffs $ 20 million to buy and develop this property. On May 30, 1991, the loan was restructured after certain defaults by Plaintiffs. The restructure cancelled Plaintiffs' $ 20 million debt and provided that Mercure Business Park would be sold under a power of sale contained in the deed of trust securing the original loan and that Perpetual would bid for the Property at the trustees' sale. Perpetual, through its wholly owned subsidiary, SAD Realty, bought the Property and Plaintiffs gave Perpetual a deficiency note in the amount of approximately $ 6.4 million. Plaintiffs continued to manage the Property pursuant to a Property Management and Marketing Agreement.

 The Debt Restructure Agreement gave Plaintiffs a "right of first refusal and option to purchase" the NVMercure Property. Paragraph 13.4 of the Agreement provided:

 Right of First Refusal and Option to Purchase.

If Perpetual receives a bona fide offer to purchase the Property from a third party, NVMercure shall have the right to match such offer at the same price and on the same terms and conditions as such bona fide offer by notice of exercise of such right provided to Perpetual in writing within ten (10) days of receipt of notice of such offer from Perpetual. In addition, NVMercure shall have the option at any time to purchase the Property for a purchase price that is the greater of (1) the Base Amount plus indebtedness owing under the Deficiency Note at the time of purchase or (b) the November 30, 1994 fair market value of the Property then owned by Perpetual.

 On January 10, 1992, the Director of the Office of Thrift Supervision ("OTS") declared Perpetual insolvent, ordered it closed and appointed the RTC as the receiver for Perpetual. Pursuant to 12 U.S.C. § 1821(d) (2) (A) (i), RTC succeeded to all of Perpetual's assets, including the Property and Perpetual's rights under the Debt Restructure Agreement.

 Subsequently, RTC entered into a Purchase and Sale Agreement with Sunchase Land Fund, G.P., Sunchase Holdings, Inc., and Sterling Pacific Assets ("Sunchase Group"). Sunchase Group bought the Property as part of a group package of loans and parcels of real estate. RTC did not give NVMercure the right of first refusal as provided in the Debt Restructure Agreement between Perpetual and NVMercure.


 In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must accept as true each of the allegations in the complaint. The motion should not be granted unless it appears beyond doubt that the plaintiffs can prove no set of facts entitling them to the relief sought in the complaint. See, e.g. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1977).


 The RTC was created by Congress in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 ("FIRREA"). The Second Circuit recently noted:

FIRREA, adopted on August 9, 1989, Pub.L. No. 101-73, 103 Stat. 364 . . . "constitute[d] emergency legislation" to stop the financial hemorrhaging. S.Rep. No. 19 at 3. As the House Report put it: "The interest of the American taxpayer demand an expedited resolution to the monumental problems involved with the unprecedented costs of dealing with hundreds of insolvent thrifts and the orderly disposition of the assets of these failed institutions."

 RTC v. Diamond, 18 F.3d 111, 113 (2nd Cir. 1994) (quoting H.R. Rep. No. 54(I), 101st Cong., 1st Sess. 308 (1989), reprinted in, 1989 U.S.C.C.A.N. 86, 104. The RTC was created to liquidate the assets of these failed institutions "expeditious[ly]." H.R. Rep. No. 101-54(I), 101st ...

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