UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
May 17, 2011
NEW YORK COMMUNITY BANK, ET AL.,
SHERMAN AVENUE ASSOCIATES, LLC, ET AL.,
The opinion of the court was delivered by: Judge Beryl A. Howell
New York Community Bank and trustees Bryn Sherman and John Raftery*fn1 (hereinafter the "petitioners") have filed a petition requesting that five legal entities be placed under receivership. According to the petitioners, these entities are in default of certain loan agreements, which are secured by real property in the District of Columbia upon which the petitioners intend to foreclose. The petitioners have not filed a Complaint containing claims for breach of contract, seeking foreclosure, or asserting other causes of action. Rather, the petitioners request appointment of a receiver as a separate form of relief, independent of any other claim. Appointment of a receiver in this context, however, is not appropriate. The petitioners' request to appoint a receiver for the respondent entities is therefore denied, and the petitioners' other motions filed in this case, namely their motions to substitute petitioners and for an expedited hearing, are consequently denied as moot.
On June 30, 2006, New York Community Bank (hereinafter "the Lender")
entered into five separate loan agreements with five separate legal
entities: Sherman Avenue Associates, LLC; Patton Arms, LLC; Lincoln
Road Associates, LLC; Caesar Arms, LLC; and Pitch Apartments, Inc.
(hereinafter "the respondents"). Pet'rs' Verified Pet. For the
Immediate Appointment of Receiver, ECF No. 1 (hereinafter "Petition"),
¶¶ 2-6. The loans to the respondents total, in aggregate, over $17
million.*fn2 Id. at ¶¶ 11, 22, 34, 46, 58. Each
agreement contained, inter alia, a security agreement, a collateral
assignment of leases and rentals, and a deed of trust, which
collectively provided the Lender with various protections, including
security interests in real property located in the District of
Columbia,*fn3 as well as security interests in all
fixtures, chattels, and personal property on these sites; and the
assignment of rents and leases. Id. at ¶¶ 12, 23, 35, 47, 59. Although
the respondents are separate legal entities that entered into separate
loan agreements with the Lender, the petitioners state that three of
the five respondents -- respondents Sherman Avenue Associates, LLC;
Lincoln Road Associates, LLC; and Caesar Arms, LLC -- "are managed by
Scott M. Herrick, in his personal capacity, and Tenacity Fleetwood,
LLC." Id. at ¶¶ 7, 69. Additionally, petitioners allege that all of
the respondents, "upon information and belief,  have common ownership."*fn4
Id. at ¶ 8.
According to the petitioners, the respondents are in default of their respective loan agreements "beyond any applicable cure period" and the Lender has therefore accelerated each respondent's loan. Id. at ¶¶ 18, 29, 41, 53, 65. Along with attorney's fees and interest, the petitioners claim that the respondents owe, in aggregate, over $20 million.*fn5 Id.
On February 23, 2011, the petitioners commenced the instant proceeding by filing a petition, which was denominated by the Clerk as a "miscellaneous" matter, requesting that the respondents be placed under receivership.*fn6 The petitioner did not file a Complaint, as specified under Federal Rule of Civil Procedure 3 ("A civil action is commenced by filing a complaint with the court."), delineating causes of action against a party or claims for relief. Rather, the initiating document for this proceeding was the petition for appointment of a receiver itself.
On April 4, 2011, the respondents filed an opposition to the petition to appoint a receiver, arguing, inter alia, that the Lender no longer has standing to seek relief because it "sold and assigned all of its right, title and interest in, under and to" the loan agreements. Resp'ts' Mem. Opp'n Pet., ECF No. 15, at 1. The petitioners did not file a reply in support of their petition to appoint a receiver, and therefore did not directly respond to this claim. On April 14, 2011, however, the petitioners filed a Motion for Substitution of Petitioners, stating that the Lender had assigned its interests under the loan agreements to five entities, and requested that 3308 Sherman Avenue, LLC; 1430 W Street, LLC; 3435 Holmead Place, LLC; 5066 Benning Road, LLC; and 2314 Lincoln Road, LLC be substituted as petitioners, and Jason A. Pardo and Russell S. Drazin be substituted as trustees pursuant to Federal Rule of Civil Procedure 25(c). ECF No. 18. This motion, and the petitioners' motion for an expedited hearing, ECF No. 2, are also pending before the Court, along with the underlying petition to appoint a receiver.
Having considered the petition to appoint a receiver for the respondents, as well as the respondents' opposition, the Court concludes that appointment of a receiver is inappropriate because there is no underlying cause of action to support the requested relief. The Court therefore denies the petition to appoint a receiver, and further denies as moot petitioners' motion for an expedited hearing. Substitution of the petitioners in this proceeding would not alter the Court's ultimate denial of the petition to appoint a receiver, and the Court therefore also denies as moot the motion to substitute petitioners.
Federal law governs the appointment of a receiver in cases where jurisdiction is based on diversity. Canada Life Assur. Co. v. LaPeter, 563 F.3d. 837, 842-43 (9th Cir. 2009) (federal law governs appointment of a receiver in diversity cases); Nat'l P'ship Inv. Corp. v. Nat'l Hous. Dev. Corp., 153 F.3d 1289, 1291-92 (11th Cir. 1998) (same); Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316 (8th Cir. 1993) (same). Under the Federal Rules of Civil Procedure, appointment and administration of receiverships "must accord with the historical practice in federal courts or with a local rule." FED. R. CIV. P. 66.*fn7 The Federal Rules provide courts with no other guidance. See S.E.C. v. Vescor Capital Corp., 599 F.3d 1189, 1194 (10thCir. 2010). The authority to appoint a receiver, however, derives from the district court's inherent powers as a court of equity, and therefore the court has "broad powers and wide discretion" in determining whether a receivership is appropriate.*fn8 Id. at 1193 (citing S.E.C. v. Safety Fin. Serv., Inc., 674 F.2d 368, 372-73 (5th Cir.1982) and S.E.C. v. Lincoln Thrift Ass'n, 577 F.2d 600, 609 (9th Cir. 1978)).
The appointment of a receiver is not a matter of right. It is an "extraordinary equitable remedy" and should be granted with "caution." Canada Life Assur. Co., 563 F.3d. at 844 (quoting Aviation Supply Corp., 999 F.2d at 316 (appointment of a receiver only justified in "extreme situations")); see also Resolution Trust Corp. v. Fountain Circle Assocs. Ltd. P'ship, 799 F. Supp. 48, 50 (N.D. Ohio 1992) (receivership should be appointed only in "cases of clear necessity to protect plaintiff's interests in the property"). The court may appoint a receiver as an ancillary, provisional action in connection with a pending matter, but "a federal court of equity will not appoint a receiver where the appointment is not ancillary to some form of final relief ." Gordon v. Washington, 295 U.S. 30, 38-39 (1935). This is because appointment of a receiver "is not an end in itself." Kelleam v. Maryland Cas. Co. of Baltimore, Md., 312 U.S. 377, 381 (1941) ("a receivership is only a means to reach some legitimate end sought through the exercise of the power of a court of equity."). "[The Supreme Court] has frequently admonished that a federal court of equity should not appoint a receiver where the appointment is not a remedy auxiliary to some primary relief which is sought and which equity may appropriately grant." Id. (internal quotations and citation omitted); see also Gordon, 295 U.S. at 37 ("[T]here is no occasion for a court of equity to appoint a receiver of property of which it is asked to make no further disposition.").
The petitioners allege that the respondents failed to make their loan payments, failed to turn over rents, and are in default of their respective loan agreements, which entitles the Lender to foreclose on the properties that serve as collateral for the loans. Petition, ¶ 74. Pending foreclosure of these properties, the petitioner seeks to appoint a receiver for the respondents "to protect the assets and rights of the Lender against the actions of the Respondents to prevent spoliation and fraud, and to manage and preserve real estate that the Respondents have pledged to the Lender." Id. at ¶ 73. Moreover, according to the petitioners, the loan agreements between the Lender and the respondents contain a provision authorizing the appointment of a receiver to "collect rents and to administer the collateral pending a sale of the Lender's collateral." Id. at ¶ 76.
Despite the petitioners' claims that the respondents are in default of their loan agreements, the petitioners have not filed a breach of contract action or otherwise moved to foreclose on the properties securing the loan agreements. The petitioners state that "the Lender intends to foreclose" on the deeds of trust executed along with each loan agreement, but the Lender has not done so. Id. at ¶ 71. (emphasis added). Rather, the Court is presented only with the petitioners' request for appointment of a receiver, which stands independent of any other claim and is sought as the sole and primary relief.
Given the procedural posture of the petitioners' request, the Court
must deny the petitioners' request to appoint a receiver. Appointment
of a receiver is an ancillary equitable remedy that can be granted
only in connection with a pending case or other cause of action. See
Kelleam, 312 U.S. at 381 ("a federal court of equity should not
appoint a receiver where the appointment is not a remedy auxiliary to
some primary relief which is sought . . . ."). Indeed, the petitioners
rely on Brill & Harrington Investments v. Vernon Savings & Loan
Association, 787 F. Supp. 250 (D.D.C. 1992), as authority for
appointment of a receiver but seemingly ignore the salient point that
the "borrower in that case filed a lawsuit," which was the basis for
the court's appointment of a receiver. Pet'rs' Mem. Supp. Pet., at 4
(emphasis added). The petitioners do not assert a cause of action;
indeed the Court cannot even refer to this proceeding as a "case"
because the petitioners have not filed a Complaint.*fn9
See FED. R. CIV. P. 3. The allegations may be true that the
respondents are in default of their loan agreements, that a
receivership is necessary to prevent spoilage, and that the
respondents consented to the appointment of a receiver in their
respective loan agreements. The Court does not reach the merits of
these arguments, however, because the Court will not appoint a
receiver, regardless of the justification, when it is sought as the
primary form of relief.
The Court denies the petitioners' request to appoint a receiver for the respondent entities and consequently denies as moot the petitioners' motion for an expedited hearing on the matter. The Court further denies as moot the petitioners' motion to substitute petitioners. Substitution of petitioners would not alter the procedural posture of the petition before the Court, which necessitates denial of the requested relief. The decision to grant or deny the request to substitute petitioners is therefore inconsequential to the ultimate disposition of the case.
For the foregoing reasons, the petition to appoint a receiver is denied and the petitioners' motion for an expedited hearing is denied as moot. The petitioners' motion to substitute petitioners is also denied as moot. An Order consistent with this Memorandum Opinion will be entered.
BERYL A. HOWELL United States District Judge