986 F.2d 611 (1st Cir. 1993), 92-1976, Oakville Development Corp. v. F.D.I.C.

Docket Nº:92-1976.
Citation:986 F.2d 611
Party Name:OAKVILLE DEVELOPMENT CORPORATION, Trustee of The 10-12 Lopez St. Trust, Plaintiff, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant, Appellee.
Case Date:March 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 611

986 F.2d 611 (1st Cir. 1993)

OAKVILLE DEVELOPMENT CORPORATION, Trustee of The 10-12 Lopez

St. Trust, Plaintiff, Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant, Appellee.

No. 92-1976.

United States Court of Appeals, First Circuit

March 4, 1993

Heard Jan. 7, 1993.

Page 612

David Hoicka, with whom Hoicka & Associates, P.C., Boston, MA, was on brief, for plaintiff, appellant.

Edward J. O'Meara, Staff Counsel, FDIC, with whom Ann S. DuRoss, Asst. General Counsel, Richard J. Osterman, Jr., Sr. Counsel, Washington, DC, John Houlihan, Sarianna T. Honkola, and Edwards & Angell, Boston, MA, were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Oakville Development Corporation (Oakville) challenges orders issued by two different district judges which had the combined effect of allowing a foreclosure sale to proceed. For the reasons that follow, we dismiss Oakville's appeal as moot.

I

Oakville borrowed $78,000 from First American Bank. The loan was evidenced by a promissory note and secured by a second mortgage on a parcel of real property located at 10-12 Lopez Street, Cambridge, Massachusetts. On October 19, 1990, the bank was declared insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver. Oakville's

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loan appeared on the bank's books as an asset.

The FDIC published notice to First American's creditors, setting a 90-day deadline for the filing of claims. Because Oakville was mired in a dispute with First American regarding the aforementioned loan, it filed a proof of claim. The FDIC rejected Oakville's claim as untimely and refused to entertain administrative appeals. Oakville did not seek judicial review within the time allotted. See 12 U.S.C. § 1821(d)(6)(A) (1988). Some months later, however, Oakville sued in state court based on First American's alleged failure to accept and credit payments on the loan. The FDIC removed the case to federal court and moved for dismissal. The FDIC's motion remains undecided.

Because Oakville's payments were substantially in arrears, the FDIC also embarked on foreclosure proceedings. It scheduled a foreclosure sale for May 20, 1992. On May 15, Oakville moved to enjoin the proposed sale. On May 19, the district court (Skinner, U.S.D.J.) issued a temporary restraining order (TRO) stalling the sale. Oakville subsequently failed to submit documents and appear at a hearing. Accordingly, Judge Skinner dissolved the TRO on July 13, 1992.

The FDIC readvertised the foreclosure sale, this time stipulating a date of August 12, 1992. Oakville filed an emergency motion to reinstate the TRO. 1 The district court (Wolf, U.S.D.J.) denied the motion, determining that the court lacked statutory authority to grant an injunction against the FDIC qua receiver. See 18 U.S.C. § 1821(j) (1988). Oakville took an appeal but did not request a stay of the impending sale (although counsel claims that he circulated notices at the auction, warning prospective bidders that an appeal was pending). The property was sold to a third party and has since changed hands.

II

It is important to stress that Oakville takes this appeal strictly and solely from two interlocutory orders of the district court: Judge Skinner's order dissolving the TRO and Judge Wolf's order refusing to reinstate the injunction (and, thus, allowing the...

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