U.S. v. Fairway Capital Corp.

• Decision Date: 11 April 2007
• Docket Number: No. 06-2023.,06-2023.
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. FAIRWAY CAPITAL CORPORATION, Defendant, Government of the Virgin Islands, Claimant, Appellant, The Law Offices of Holland & Knight, LLP, as Counsel to Joseph M. DiOrio, Trustee for Arnold Kilberg; Henry D. Vara; Francis Dimento; James C. Callahan, Claimants.

483 F.3d 34

UNITED STATES of America, Plaintiff, Appellee, v. FAIRWAY CAPITAL CORPORATION, Defendant Government of the Virgin Islands, Claimant, Appellant The Law Offices of Holland & Knight, LLP, as Counsel to Joseph M. DiOrio, Trustee for Arnold Kilberg; Henry D. Vara; Francis Dimento; James C. Callahan, Claimants.

No. 06-2023.

United States Court of Appeals, First Circuit.

Heard February 9, 2007.

Decided April 11, 2007.

John J. Jacko, III, with whom H. Marc Tepper and Buchanan Ingersoll & Rooney, PC, were on brief, for claimant-appellant.

Thomas W. Rigby, Chief Counsel for SBIC Liquidation, Office of General Counsel, U.S. Small Business Administration, with whom Stacey P. Nakasian and Duffy Sweeney & Scott, LTD. were on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

This is a case involving a claim for possession of property and a monetary claim that the Government of the Virgin Islands ("GVI") made against the Small Business Administration ("SBA") receivership estate for Fairway Capital Corporation. The SBA Receiver recommended that GVI's possessory claim be denied, and that its monetary claim be granted in part. GVI filed an objection, but the district court affirmed the Receiver's Report and Recommendation. GVI now appeals the court's disposition of its claims before the Receiver. After careful consideration, we affirm.

I. Factual Background

A. Before the Receivership Proceedings

Protestant Cay is an island in the Virgin Islands. In 1964, the Virgin Islands legislature approved Act 1179, which authorized GVI to negotiate a fifty-year lease for Protestant Cay. The same year, GVI leased the land on Protestant Cay to Hotel-On-The-Cay, Inc. for fifty years (the "Ground Lease"). In exchange for the lease, Hotel-On-The-Cay, Inc. agreed to pay rent to GVI, to construct a hotel, and to pay GVI a portion of the profits from the hotel.

In 1969, GVI and Hotel-On-The-Cay, Inc. executed Amendment No. 1 to the Ground Lease to protect the rights of lenders who might hold a mortgage over the leasehold interest. No legislative approval was sought for the amendment.

Hotel-On-The-Cay, Inc. assigned its interest in the Ground Lease to Oliver Plunkett ("Plunkett"). In 1980, Plunkett filed a declaration in the Virgin Islands stating his intention to create 2,900 weekly timeshare units to be known as "Hotel On The Cay Resort" (the "Resort"). Plunkett had a fair bit of success, selling 1,500 of the units. However, by 1982, 1,400 units remained unsold, forcing Plunkett to declare bankruptcy. In 1986, the trustee in Plunkett's bankruptcy conveyed Plunkett's interest in the Ground Lease to Harborfront Properties, Inc. ("Harborfront") and Plunkett's interest in the unsold timeshare units to Protestant Cay, Ltd. ("PCL").

In 1990, Legend Resorts L.P. ("Legend") and TSA Acquisition, Inc. ("TSA") agreed to acquire the unsold timeshare units from PCL. In order to finance the acquisition, Legend and TSA borrowed $1.7 million (the "Legend Loan") from Fairway Capital Corp. ("Fairway"), a Small Business Investment Company as defined in 15 U.S.C. § 681. The Legend Loan was secured by a mortgage on the unsold timeshare units; Fairway was also made a 20% limited partner in Legend. In addition, Harborfront gave Fairway a mortgage on Harborfront's interest in the Ground Lease; Harborfront later assigned the Ground Lease to Fairway in 1991. Thus, as of 1991, Fairway held (a) a mortgage interest in the unsold timeshare units, (b) a mortgage interest in the Ground Lease, and (c) a 20% limited partnership interest in Legend. The same year, GVI and Legend entered into Amendment No. 2 to the Ground Lease, which provided in part that the lease would be subject to cancellation by the lessor if the lessee was in arrears for sixty days after notice of default. As with Amendment No. 1, this amendment was not separately approved by the legislature.

In order to service the Legend Loan, Fairway formed a subsidiary named Participation Services Corporation ("PSC") in 1994. Fairway assigned its interest in the Legend Loan to PSC the same year. Legend defaulted on the Legend Loan, and PSC foreclosed on the mortgages, naming Legend, TSA, Harborfront, and GVI in the foreclosure action. A stipulated judgment of foreclosure was entered on June 7, 1996. Thus, as of that date, PSC became the owner of (a) the leasehold interest in the Ground Lease and (b) the unsold time-share units.

GVI then sent notice to Legend and Fairway that Legend was in arrears and that GVI would terminate the Ground Lease. Sixty days later, GVI filed an eviction action against Legend and Fairway in the Territorial Court of the Virgin Islands (the "eviction action"). Neither Legend nor Fairway appeared, and the Territorial Court entered a default judgment on September 18, 1997. On December 31, 1997, PSC filed a motion to intervene and to set aside the default judgment in the eviction action. At the same time, a similar motion was filed by Hotel On the Cay Timeshare Association, Inc. ("HOTC"), an entity incorporated by the owners of the sold timeshare units. Both motions were granted.

On May 22, 1998, GVI and HOTC entered into a settlement agreement, which the parties refer to as the "Stipulated Settlement." The Stipulated Settlement provided that in exchange for HOTC withdrawing its intervention in the eviction action, GVI would recognize HOTC as the lessee of the timeshare resort, including the unsold timeshare units. In addition, the Stipulated Settlement stated that HOTC would not be deemed a successor to Legend or Fairway. Finally, the parties agreed in the Stipulated Settlement that in the event that Legend and Fairway prevailed in the eviction action and their lease of the resort was reinstated, GVI would give credit to Legend and Fairway for all of HOTC's rent payments. After concluding the Stipulated Settlement with HOTC, GVI continued to prosecute its eviction action against Legend and Fairway in the Territorial Court, filing a motion for summary judgment on December 22, 1999.

On January 19, 2000, the SBA filed a complaint against Fairway in the United States District Court for the District of Rhode Island. The SBA's complaint asked that Fairway be placed in receivership because of Fairway's breach of various SBA regulations and its failure to pay amounts owed to the SBA. On March 13, 2000, the district court entered an order placing Fairway in receivership and imposing a stay on all litigation involving Fairway, including GVI's eviction action. At this time, the Territorial Court had not yet ruled on GVI's motion for summary judgment in the eviction action. Thus, as of March 13, 2000, PSC continued to hold an interest in the Ground Lease and the unsold timeshare units subject to the outcome of the stayed eviction proceedings. In March 2002, the district court ordered these interests transferred to the Fairway receivership estate.¹

B. The Receivership Proceedings

GVI filed two claims with the SBA Receiver: an equitable claim asking for immediate possession of the unsold timeshare units and a monetary claim asking for $1,450,760 for unpaid rent, taxes, unemployment insurance contributions, and associated costs, interest, and penalties. The Receiver recommended denying the equitable claim and granting the monetary claim to the extent of $430,421.84. The Receiver found that the remainder of GVI's monetary claim was either not supported by evidence that met requirements set forth in the "Notice to Creditors," or that the claim covered time during which neither Fairway nor Legend were in possession of the resort.

At a preliminary hearing on the Receiver's Report, held on February 16, 2005, the district court stated the procedure for making objections:

Any objectors should file their materials within 30 days as the order provides. The Receiver will have 30 days to respond. And then when I have that material, I will make a determination of whether I can decide those matters on the papers or whether a bench trial is necessary. And I will reserve decision on that until I see those papers.

After GVI stated that it would raise the issue of abstention, the court responded:

I think [GVI] should put forth all of its contentions in the objection, and then [the Receiver will] respond to it, and then I'll decide whether I'm going to have a hearing separately on that question of abstention or not.

GVI filed an objection to the Receiver's Report and Recommendation, suggesting that the court abstain from deciding whether GVI was in actual possession of the unsold timeshare units, and in the alternative, arguing that GVI was in actual possession of the unsold timeshare units, and thus would be entitled to judgment on its equitable claim. GVI's objection also stated that it was entitled to an additional $120,000 on its monetary claim, of which it identified approximately $59,000 as being undisputed.

At a hearing on the objection on July 12, 2005, the court asked GVI if it wanted to "present any evidence, any testimonial evidence." GVI responded, "Not in addition to what's already been submitted, your Honor, that's correct." GVI then proceeded to state that only its monetary claim was properly before the court because the district court lacked jurisdiction over its equitable claim for possession of the unsold timeshare units. The court responded, "I thought everything was before the court. I have jurisdiction over the whole works." GVI then argued that the court lacked jurisdiction because the court had jurisdiction only over assets possessed by Fairway, and that Fairway did not possess the Resort. The court responded, "That's a question I will have to decide, not the Territorial Court of the Virgin Islands. I have exclusive jurisdiction of this matter. I've already ruled that. I denied the lifting of the stay." The court then explained:

I have taken exclusive jurisdiction of this matter...