First Indiana Federal Sav. Bank v. F.D.I.C. ( 1992 )


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  •                                      United States Court of Appeals,
    
                                                  Fifth Circuit.
    
                                                  No. 91–2746.
    
                     FIRST INDIANA FEDERAL SAVINGS BANK, Plaintiff–Appellant,
    
                                                        v.
    
         FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for United Savings
    Association of Texas, and United Savings Association of Texas, FSB, Defendants–Appellees.
    
                                                  July 1, 1992.
    
    Appeals from the United States District Court for the Southern District of Texas.
    
    Before KING and WIENER, Circuit Judges, and LAKE, District Judge*:
    
              WIENER, Circuit Judge:
    
              Plaintiff–Appellant First Indiana Federal Savings Bank (First Indiana) appeals an adverse
    
    judgment rendered in its suit on a loan participation contract (the participation agreement) that its
    
    predecessor had entered into with the predecessor of United Savings Association of Texas (Old
    
    United).1 The district court judgment favored the Defendants–Appellees: the FDIC, as receiver for
    
    Old United, and United Savings Association of Texas, FSB (New United). Following a trial in which
    
    the jury responded to specific interrogatories only, but before judgment was rendered by the district
    
    court, Old United became insolvent and was taken over by the FSLIC, which in turn was followed
    
    by the FDIC, as receiver. Some three years after the jury's special verdicts were handed down, the
    
    district court held that when New United (as transferee of the FSLIC in its then capacity of receiver
    
    for Old United) became the owner of many of the assets formerly belonging to Old United—including
    
    its interest in the participation agreement—New United nevertheless did not become responsible for
    
    Old United's unsecured obligations that had arisen under the participation agreement. New United
    
    did acquire all subsisting rights of action of Old United under the participation agreement as well as
    
    all benefits and obligations Old United accruing under the participation agreement from and after New
    
       *
           District Judge for the Southern District of Texas, sitting by designation.
       1
        Even though the agreement was actually between the predecessors of Old United and First
    Indiana, we refer to these two institutions for the sake of simplicity and clarity.
    United's acquisition of Old United's interests. Finding no reversible error, we affirm.
    
    
    
                                                      I.
    
                                      FACTS AND PROCEEDINGS
    
           Old United is the successor to the original seller and First Indiana is the successor to the
    
    original buyer under the participation agreement. It covered the development of four apartment
    
    complexes in Houston. First Indiana acquired various interests in the participations (totalling about
    
    $5.5 million), and Old United retained ten percent of each together with management responsibilities
    
    and the right to compensation for managerial services it rendered.
    
    
    
           Among its provisions, the participation agreement contained a repurchase option or "put" that
    
    would become exercisable at the election of First Indiana if Old United violated "any of the terms,
    
    covenants, warrant ies and conditions" of the participation agreement and failed to cure any such
    
    violation within 30 days after notice.2 The parties also agreed that Old United would (1) be held to
    
    a standard of ordinary care in its management of the loans; (2) notify First Indiana of any default on
    
    any of the loans or "any fact s which are likely to give rise to any default or any impairment of
    
    security"; and (3) pay First Indiana certain transfer fees.3
    
    
    
           Three of the four apartment complexes began experiencing problems. The loans then became
    
    delinquent and were eventually foreclosed. First Indiana claims that Old United violated the terms
    
    of the participation agreement in failing to notify First Indiana of the problems with the loans and
    
    potential defaults. First Indiana sent a letter to Old United notifying it of that default under the
    
    participation agreement and demanding immediate repurchase. The letter did not give Old United
    
    30 days to cure.
    
       2
        The agreement also contained a repurchase option in favor of Old United, not at issue in this
    case.
       3
       These fees are not adequately explained in the briefs, but they apparently have something to
    do with the fact three of the four properties were foreclosed.
              First Indiana eventually filed suit against Old United seeking specific performance of
    
    repurchase of the participations pursuant to the participation agreement. Old United counterclaimed
    
    to force First Indiana to purchase Old United's share of the loans, and also seeking a money judgment
    
    for fees related to Old United's management of the foreclosed properties. After two attempts at
    
    summary judgment, the case was tried before a jury. Responding to special verdict interrogatories,
    
    the jury found against Old United on several issues: that it had failed to give prompt notice of facts
    
    that were likely to result in a default, that it had failed to exercise ordinary care, and that its violations
    
    were not curable. The jury also found against First Indiana on several issues: that the breaches of
    
    the participation agreement by Old United were not material, that First Indiana's notice to Old United
    
    was inadequate, and that First Indiana had waived its claims.
    
    
    
              Following the jury verdict almost three years elapsed before the district court entered its
    
    judgment. In the meantime, Old United was declared insolvent and the FSLIC formed New United.4
    
    Pursuant to an acquisition agreement, the FSLIC sold many of the assets of Old United to New
    
    United. Thereafter, New United intervened in the instant suit to counterclaim and to reassert Old
    
    United's claims against First Indiana.
    
    
    
              First Indiana then filed another motion for summary judgment, arguing that Old United's
    
    insolvency was ano ther event of default that terminated the participation agreement and triggered
    
    repurchase. The court, however, entered judgment against First Indiana on its repurchase claim,
    
    awarding a money judgment to New United for $77,403 in unpaid fees and expenses plus interest,
    
    and dismissing First Indiana's claims against the FDIC. First Indiana timely appealed.
    
    
    
                                                         II.
    
                                                    ANALYSIS
    
               Primarily at issue is Section 3 of the acquisition agreement between FSLIC and New United.
    
       4
           First the FSLIC and then the FDIC were substituted for Old United in this action.
    It states in pertinent part:
    
    
    
              [New United] hereby expressly assumes and agrees to pay, perform and discharge ... (b) [Old
              United's] liabilities that are secured by assets purchased by [New United] pursuant to Section
              25 of this Agreement to the extent of the value of the security ... except as expressly set forth
              in this Section 3, [New United] will not assume any of the claims, debts, obligations or
              liabilities (including without limitation, known or unknown, contingent or unasserted claims,
              demands, causes of action or judgments; or debts, obligations or liabilities; or commitments
              to loan or obligations to make future fundings or advances under existing loans or other
              obligations even if such loans or other obligations are acquired by [New United] ) of [Old
              United]....6
    
              First Indiana characterizes Old United's obligations under the participation agreement as
    
    "liabilities that are secured by assets purchased" by New United. We do not agree. From the outset,
    
    the participation agreement never created anything more than unsecured personal obligations between
    
    the parties. Nothing contained in that agreement purported to secure the obligations of one party to
    
    another with any encumbrance of the interests purchased or conveyed therein. To the extent that
    
    First Indiana had any valid claims against Old United, they were not secured claims, so clearly they
    
    did not survive the transfer of assets under the acquisition agreement between the FSLIC and New
    
    United.
    
    
    
               After it declared Old United insolvent, the Federal Ho me Loan Bank Board (FHLBB)
    
    determined that the aggregate value of the assets of Old United were less than its total secured and
    
    depositor liabilities, and that there were no assets available to pay unsecured creditors.7 Under the
    
       5
           Section 2 governs the transfer of all of Old United's assets to New United.
       6
           Emphasis added.
       7
         The FHLBB's regulations required it to follow the Texas depositor preference statute,
    Tex.Rev.Civ.Stat. Art. 852a § 8.09(g) in determining priority for payment of creditors. See 12
    C.F.R. § 569c.11(a)(6) (1989), redesignated to 12 C.F.R. 389.11 (1990) 54 Fed.Reg. 42801
    (Oct. 18, 1989). The Texas depositor preference statute mandates that depositors claims be paid
    in full before those of general creditors.
    
                     The FHLBB's worthlessness determination not only established the value of First
              Indiana's unsecured claims, it also binds the courts hearing actions on those claims.
              281–300 Joint Venture v. Onion, 
    938 F.2d 35
    , 38 (5th Cir.1991), cert. denied, ––– U.S.
              ––––, 
    112 S. Ct. 933
    , 
    117 L. Ed. 2d 105
     (1992); Gulley v. Sunbelt Savings, F.S.B., 
    902 F.2d 348
    , 351 (5th Cir.1990), cert. denied, ––– U.S. ––––, 
    111 S. Ct. 673
    , 112 L.Ed.2d
    acquisition agreement, the FSLIC transferred to New United substantially all of the assets8 of Old
    
    United but only the secured, deposit, and certain tax liabilities. The unsecured liabilities of Old
    
    United, accrued as of the date of the transfer, were neither assigned to nor assumed by New United.
    
    The FSLIC retained all claims, demands, and causes of action of general unsecured creditors of Old
    
    United.
    
    
    
              Because New United did not acquire any unsecured liabilities under the acquisition agreement,
    
    First Indiana's only recourse was to seek relief against the FDIC as receiver for Old United. It made
    
    little difference, however, whether the claims of First Indiana against Old United were valid, because
    
    the liabilities of Old United exceeded its assets to such an extent that there were no assets for the
    
    receiver to distribute to general creditors such as First Indiana.
    
    
    
               In enacting FIRREA, Congress unequivocally expressed its intent to limit the maximum
    
    liability of the FDIC to the amount the claimant would have received in a liquidation under federal
    
    priority regulations.9 In this instance, First Indiana would not have received anything had Old United
    
    been liquidated.
    
    
    
              Congressional policy requires that creditors of failed institutions look only to the assets of the
    
    institution for recovery of their losses, and not to the taxpayers.10 If First Indiana were to obtain a
    
    judgment in its favor, that judgment could not exceed the amount it would have received in a
    
    liquidation—in this case, nothing. Therefore, the district court could not legally enter a judgment
    
    
    
    
              665 (1991). First Indiana did not challenge the worthlessness determination, therefore, it
              is conclusive as to First Indiana's claims.
       8
       Those assets not transferred to New United were transferred to FSLIC in consideration of
    FSLIC's agreement to provide financial assistance to New United.
       9
           See 12 U.S.C. § 1821(i)(2).
       10
            See Village South Joint Venture v. FDIC, 
    733 F. Supp. 50
    , 52 (N.D.Tex.1990).
    against the FDIC in favor of First Indiana, and was correct in dismissing the FDIC.11
    
    
    
               Another reason that First Indiana cannot reco ver in this case is that its claims are not
    
    susceptible of redress by any court. As adjudication of the claims would be futile, First Indiana's
    
    claims are moot. A moot case exists when the court cannot grant relief that would affect the parties
    
    and redress the plaintiff's alleged wrongs.12 Even if First Indiana's claims constitute a "case or
    
    controversy" under Article III of the Constitution, those claims should be dismissed for prudential
    
    reasons because there is no practical purpose in requiring their adjudication on the merits.13
    
    
    
              Irrespective of the abstract validity of any of First Indiana's claims against Old United, there
    
    are no set of circumstances under which First Indiana can recover any money or property as a result
    
    of those claims.14 It follows that litigating such claims would require a significant dedication of
    
    resources by First Indiana, the FDIC, and the district court. Because this expenditure of time and
    
    money will never result in First Indiana's obtaining the relief it seeks, a trial on the merits would be
    
    a completely hollow act. Consequently, the district court's dismissal of First Indiana's claims against
    
    the FDIC and that court's judgment in favor of New United and against First Indiana were proper on
    
    grounds of prudential mootness.
    
    
    
              We find it noteworthy here that among the assets transferred by the FSLIC from Old United
    
    to New United is Old United's interest as seller under the participation agreement. Our decision today
    
    affects only those claims made by First Indiana with respect to the actions of Old United. As a
    
    successor in interest to Old United under the participation agreement, New United succeeds to all of
    
       11
            FDIC v. Browning, 
    757 F. Supp. 772
    , 773 (N.D.Tex.1989).
       12
        Iron Arrow Honor Soc. v. Heckler, 
    464 U.S. 67
    , 70, 
    104 S. Ct. 373
    , 374, 
    78 L. Ed. 2d 58
    (1983) (per curiam).
       13
         See Franks v. Bowman Transportation Co., 
    424 U.S. 747
    , 756 n. 8, 
    96 S. Ct. 1251
    , 1260 n.
    8, 
    47 L. Ed. 2d 444
     (1976).
       14
            See FSLIC v. Locke, 
    718 F. Supp. 573
    , 585–88 (W.D.Tex.1989).
    Old United's rights—past, present and future—arising under that agreement. Similarly, New United
    
    is responsible for the performance of all obligations of the seller under the agreement, but only those
    
    accruing from and after the transfer by the FSLIC to New United. Therefore, it is only to the extent
    
    that New United should fail to live up to its responsibilities under the participation agreement after
    
    its transfer from the FSLIC that First Indiana would have a right of action against New United.
    
    
    
              Finally, First Indiana argues that in the event we affirm the district court's decision, it is
    
    entitled to offset against the judgment the $15,257.43 in transfer fees allegedly due from Old United.
    
    We must again disagree. For the reasons discussed above, this sum represents an unsecured
    
    obligation of Old United that neither survived Old United's insolvency nor was transferred under the
    
    acquisition agreement. Therefore, First Indiana has no right to assert its claim for such amounts
    
    against New United whether by offset or otherwise. As far as obligations of the seller under the
    
    participation agreement are concerned, New United got a "fresh start" as of the time it acquired the
    
    interest of Old United by transfer from the FSLIC. As far as rights and benefits of the seller under
    
    the participation agreement are concerned, New United stepped into the shoes of Old United
    
    irrespective of the date that any such rights and benefits may have accrued or in the future may
    
    accrue.
    
    
    
                                                       III.
    
                                                CONCLUSION
    
              Regardless of the validity of First Indiana's unsecured claims, First Indiana can recover
    
    nothing from New United because liability for First Indiana's claims were not transferred to or
    
    assumed by New United. Furthermore, First Indiana is precluded from recovering from Old United
    
    or the FDIC because First Indiana would have received nothing in a liquidation of Old United and the
    
    FDIC is immune. On appeal, First Indiana does not dispute the judgment entered in favor of New
    
    United for First Indiana's share of expenses in the management of the loans. Therefore, the district
    
    court did not err in granting the money judgment in favor of New United and dismissing all claims
    against the FDIC. The judgment of the district court is
    
    
    
           AFFIRMED.