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NASHVILLE LODGING CO. v. FDIC

July 30, 1996

NASHVILLE LODGING CO., et al., Plaintiffs,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Savers Savings Association, Defendant. 1



The opinion of the court was delivered by: HARRIS

 Before the Court are plaintiffs' motion for summary judgment; defendant's opposition thereto; defendant's cross-motion for partial summary judgment; plaintiffs' reply to defendant's opposition; plaintiffs' response to defendant's statement of points and authorities in support of its motion for partial summary judgment; and defendant's reply to plaintiffs' response. Upon careful consideration of the filings and the entire record, plaintiffs' motion for summary judgment is granted in great part and denied in part, and defendant's motion for partial summary judgment is denied. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth its reasoning.

 Background

 The history of this case is fully set out in this Court' s Opinion of December 30, 1993, 839 F. Supp. 58 (D.D.C. 1993), and the Opinion of the United States Court of Appeals for the District of Columbia Circuit, issued on July 18, 1995, 313 U.S. App. D.C. 240, 59 F.3d 236 (D.C. Cir. 1995). In brief: On July 10, 1992, plaintiff Nashville Lodging Company and two of its general partners, Kenneth E. Nelson and Nashville Residence Corporation ("NRC") (hereinafter collectively termed "Nashville"), filed suit against the Resolution Trust Corporation and the Southeast Real Estate Operating Company ("SREOC"). Nashville claimed that the RTC erroneously denied Nashville's claim for damages stemming from the RTC's repudiation of a Refinancing Agreement. The Refinancing Agreement had been executed in 1983, along with a $ 9.5 million loan ("Loan"), by Savers Federal, a bank which was reconstituted in 1989 as Savers Savings and which was in RTC receivership by 1991, and a company called 2300 Elm, formerly named the Nashville Residence Corporation ("NRC ('83)," not to be confused with the current "NRC"). *fn2" Nashville also claimed that, since the RTC had sold the Loan to SREOC as part of a pool of loans, Nashville was entitled to offset the damages suffered as a result of the RTC's repudiation of the Refinancing Agreement against the amounts owing to SREOC on the Loan's principal.

 In its December 30, 1993, Opinion, this Court held that, since Nashville failed to make two payments to the RTC under the Refinancing Agreement between the time the RTC was appointed Receiver of Savers Savings and the time the RTC repudiated the Refinancing Agreement, Nashville was in default under the Refinancing Agreement at the time of repudiation, and therefore was not entitled to recover damages for the RTC's purported breach of that Agreement. In the alternative, this Court found that, since Nashville's rights under the Agreement had not vested, it was not entitled to recover any "actual direct compensatory damages" under the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA). Nashville Lodging Co. v. RTC, 839 F. Supp. 58, 62 (D.D.C. 1993); see also 12 U.S.C. ยง 1821(e)(3)(A) (1994) (liability of RTC for repudiation of any contract limited to "actual direct compensatory damages," determined either as of the date of appointment of the receiver or the date of repudiation, depending on the nature of the contract repudiated). Finally, this Court held that, since the RTC had transferred only the Loan to SREOC, and not any liability stemming from the RTC's repudiation of the Refinancing Agreement executed along with the Loan, plaintiffs could not offset any damages from the RTC's repudiation of the Agreement against what they owed SREOC on the Loan. 839 F. Supp. at 62.

 The Court of Appeals affirmed this Court's Opinion in part and reversed in part. Nashville Lodging Co. v. Resolution Trust Co., 313 U.S. App. D.C. 240, 59 F.3d 236 (D.C. Cir. 1995). The Court of Appeals affirmed this Court's holding that Nashville was not entitled to offset against what it owed SREOC on the Loan any damages from the repudiation of the Agreement. The Court of Appeals held, however, that Nashville had not been in default under the Agreement at the time of repudiation, but had merely withheld payment of the monthly fees pending adequate assurances from the RTC that the Agreement would be assumed and not repudiated. 59 F.3d at 241-44.

 In addition, the Court of Appeals held that, although Nashville's right to refinancing at the end of the term of the Loan was contingent upon Nashville's continued compliance with the Agreement (inter alia, continued timely payment of the monthly fees), the promise of the bank to refinance was "binding and enforceable under contract law" at the time of the repudiation. 59 F.3d at 241-42 (quoting Office and Professional Employees Int'l Union v. FDIC, 307 U.S. App. D.C. 148, 27 F.3d 598, 602 (D.C. Cir. 1994)). The Court of Appeals likewise held that the compensation Nashville sought from the RTC was properly thought of as "actual direct compensatory damages" under FIRREA, and stated that, with respect to proof of damages, the "burden is on the RTC as repudiator to show that the value of the right Nashville bought was worth less than what it had paid as of October 1991." Id. at 245-46. See also DPJ Co. v. FDIC, 30 F.3d 247, 250 (1st Cir. 1994) (holding that loan commitment fees outlaid as condition of securing a line of credit with bank were "actual direct compensatory damages" under FIRREA).

 The Court of Appeals accordingly remanded the case to this Court for further proceedings on Nashville's damage claims, stating that Nashville's "bid to recover [its expenses paid as refinancing fees] does not run afoul of FIRREA's limitation to compensatory damages." Id. at 246. The Court of Appeals denied the RTC's petition for rehearing and suggestion for rehearing en banc on September 14, 1995. After the mandate from the Court of Appeals issued in late October 1995, this Court issued an Order requesting the parties to file a Status Report and proposed briefing schedule on the damages issue; following an additional period of discovery, the parties filed the above-referenced cross-motions and accompanying memoranda.

 Discussion

 Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (emphasis in original).

 A fundamental disagreement apparently exists between Nashville and defendant as to what exactly the Court of Appeals held in its June 1995 opinion. Nashville contends in its motion for summary judgment that the Court of Appeals determined that Nashville was entitled to some damages, the only question being how much. The FDIC contends that the Court of Appeals' opinion is merely a jumping-off point for discussion about how much, if any, damages plaintiff should receive.

 Defendant's perception is the better of the two. The Court of Appeals held that Nashville's suspension of payments did not constitute a breach, "rejected the RTC's arguments that Nashville's claim for damages must fail for lack of provability or vestedness," and pronounced that plaintiffs' "bid to recover" its expenses paid under the Refinancing Agreement did not "run afoul of FIRREA's limitation to compensatory damages." 59 F.3d at 244-46. These three holdings, in the aggregate, address only threshold issues to the ultimate damage determination; nothing in the Court of Appeals' opinion assures plaintiffs of full, or even partial, recovery on their claim.

 That being said, defendant's arguments against recovery on plaintiffs' claims suffer from a number of failings. First, defendant is estopped from asserting that Nashville Lodging is not the successor-in-interest to NRC ('83). Second, defendant's contention that the Refinancing Agreement was a valueless sham transaction at its incipience is without merit. Third, defendant's lack of any proof rising above the level of speculation that the present value of the Refinancing Agreement is worth less than the amount Nashville has previously paid dictates judgment in favor of the plaintiffs for the full amount of the fees paid under the Refinancing Agreement, dating to its execution in 1984. However, because the Court finds that the Refinancing Agreement is not a "qualified financial contract" under FIRREA, Nashville is only entitled to damages dating from the date of appointment of the receiver, not as of the date of repudiation. *fn3" Nashville is entitled as well to prejudgment interest on its claim.

 A. Nashville Lodging As Successor-In-Interest To NRC ('83)

 In 1993, this Court wrote in its Opinion that NLC was "substituted as the borrower of the Loan in 1989," after NRC ('83) had "transferred the property to [NLC]." 839 F. Supp. at 60. In 1995, the Court of Appeals wrote in its Opinion that NRC was "the predecessor-in-interest" to NLC. 59 F.3d at 240. Now, after the case has been remanded to this Court for a determination of damages, defendant brings to the forefront an issue it previously dealt with only in a footnote in its 1993 opposition to plaintiff's motion for summary judgment. *fn4" Namely, it claims that NLC was not the successor-in-interest to NRC ...


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