American First Federal v. Lake Forest Park

• Decision Date: 23 December 1999
• Docket Number: 98-5683,Nos. 98-5206,s. 98-5206
• Parties: (11th Cir. 1999) AMERICAN FIRST FEDERAL, INC., a Nevada Corporation, Plaintiff-Counter-Defendant-Appellee, v. LAKE FOREST PARK, INC., a Florida Corporation, Michael Vazquez, individually, Rosa B. Vazquez, individually, and Osmara Vazquez, individually, Defendants-Counter-Claimants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1259

198 F.3d 1259 (11th Cir. 1999)

AMERICAN FIRST FEDERAL, INC., a Nevada Corporation, Plaintiff-Counter-Defendant-Appellee, v. LAKE FOREST PARK, INC., a Florida Corporation, Michael Vazquez, individually, Rosa B. Vazquez, individually, and Osmara Vazquez, individually,

Defendants-Counter-Claimants-Appellants.

Nos. 98-5206, 98-5683.

United States Court of Appeals, Eleventh Circuit.

Dec. 23, 1999.

Appeals from the United States District Court for the Southern District of Florida. (No. 96-2040-CV-DMM), Donald M. Middlebrooks, Judge.

Before EDMONDSON and BARKETT, Circuit Judges, and COHILL^*, Senior District Judge.

BARKETT, Circuit Judge:

Lake Forest Park, Inc., Michael Vazquez, Rosa Vazquez, and Osmara Vazquez (collectively "Lake Forest") appeal the district court's entry of summary judgment in favor of American First Federal ("AFF") on AFF's action to recover on a promissory note. On appeal, Lake Forest argues (1) that the district court erred in granting judgment on the promissory note because it was not enforceable under Florida law, and (2) that the district court erred in failing to consider Lake Forest's affirmative defense against AFF. We affirm.

BACKGROUND

In 1987, Lake Forest obtained a $9,000,000 construction loan from the Professional Bancorp Mortgage Company ("PBMC") to finance the development of an apartment complex. In connection with the loan, PBMC required Lake Forest to obtain a letter of credit in favor of PBMC in the amount of $181,630 to ensure the availability of funds to pay insurance and tax accruals on the property as they came due. On March 17, 1988, Lake Forest secured the letter of credit from PBMC's affiliate Professional Savings Bank ("Professional"), and in return executed a promissory note ("note") for $181,630, payable on demand to Professional, with interest accruing at the rate of 9.5% per year. Michael Vazquez, the President of Lake Forest, and Camilo Padreda, each personally guaranteed the note, and Rosa and Osmara Vazquez pledged a $100,000 certificate of deposit as collateral.

By the end of March 1990, per Lake Forest's admission in paragraph 8 of its Answer, the entire proceeds of the letter of credit had been drawn by PBMC. The Department of Housing and Urban Development, which had previously approved Lake Forest's application for a commitment to insure the construction loan, subsequently failed to issue a final endorsement of the loan. Professional, to whom PBMC had assigned the loan, then refused to fund the remaining balance. In July 1990, Professional went into receivership, and the Resolution Trust Corporation ("RTC") was appointed receiver. In June 1995, the RTC sold the note and all rights arising thereunder to AFF.

On December 11, 1996, AFF filed its complaint against Lake Forest for the monies due under the promissory note, and sought to foreclose upon the collateralized certificate of deposit. Lake Forest counterclaimed, asserting that Professional had wrongfully failed to release the balance of the construction loan proceeds, thereby causing Lake Forest to default on the promissory note. Thus, Lake Forest argued, the damages flowing from Professional's failure to release the loan proceeds should be offset against any recovery awarded to AFF. The district court declined to consider Lake Forest's set-off claim because Lake Forest had not exhausted the administrative remedies provided for under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), Pub.L. No. 101-73, 103 Stat.183 (codified as amended in sections of 12 U.S.C.), and granted summary judgment to AFF for damages in the amount of $456,421.39, attorneys fees and costs, and foreclosure on the certificate of deposit. Lake Forest appeals these rulings.

We review the district court's conclusions of law de novo. Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Irby v. Bittick 44 F.3d 949, 953 (11th Cir.1995) (citing Fed.R.Civ.P. 56(c)).

DISCUSSION

A.Enforceability of the Promissory Note

On appeal, Lake Forest first argues that the district court erred in granting summary judgment on the note because AFF had not obtained the necessary Florida documentary tax stamps for the note prior to commencement of the district court proceedings. Under Section 201.08(1) of the Florida Statutes, a note is not enforceable until the requisite documentary tax has been paid. Fla. Stat. Ann. 201.08(1) (West 1999). During the proceedings before the district court, the original loan documents apparently were misplaced and were not produced until the summary judgment hearing. After the district court entered summary judgment, but prior to the entry of final judgment, Lake Forest moved to vacate the order granting summary judgment on the grounds that AFF had not obtained the documentary tax stamps necessary to enforce the promissory note. With the court's permission, AFF paid the tax, and the court then entered final judgment.

The plain language of Section 201.08(1) provides that an "instrument shall not be enforceable in any court of this state ... unless and until the tax due thereon ... has been paid." However, there is nothing in the statute which precludes the entry of judgment once the taxes have been paid. As the Florida courts have recognized, "the statute [does not] deny enforceability merely because the required documentary stamps have been belatedly purchased and affixed." Klein v. Royale Group, Ltd. 578 So.2d 394, 395 (Fla.Dist.Ct.App.1991), see also Owens v. Blitch, 443 So.2d 140, 141 (Fla.Dist.Ct.App.1984) ("Nothing in Florida law would deny enforceability of promissory notes merely because documentary stamps have been belatedly affixed."); Silber v. Cn'R Indus., 526 So.2d 974, 977 (Fla.Dist.Ct.App.1988) ("[O]nce the tax has been paid and the documentary stamps affixed, however belatedly, the note becomes enforceable according to its terms."). Thus, the district court correctly determined that the payment of the tax after the commencement of the lawsuit but before final judgment did not bar the entry of final judgment.

We also find no merit in Lake Forest's alternative argument that the note was unenforceable because AFF did not pay a penalty for the delayed payment of the tax. Here, again, the plain language of Section 201.08 is conclusive. This section clearly precludes enforcement of the note until the tax due thereon has been paid. A penalty for late payment is provided for separately in section 201.17(2).¹ The statute does not link payment of that penalty to enforceability of the note, and nothing in the Florida case law supports such a construction. Hence, AFF's failure to pay a penalty did not bar enforcement of the note.

B.Lake Forest's Affirmative Defense

Having determined that AFF was entitled to recover on its complaint, we turn to the question of whether Lake Forest is entitled to a set-off resulting from any viable affirmative defense. We note initially that because AFF has admitted that it is not a holder in due course, Lake Forest is entitled to assert all of the defenses, including counterclaims and set-offs, that it might have asserted against any original party to the note.² See United States v. Second Nat. Bank of North Miami, 502 F.2d 535, 546 (5th Cir.), cert. denied 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1974). In this regard, Lake Forest asserts that Professional's refusal to fund the $793,325 balance of the construction loan caused Lake Forest to default on its obligations under the note and on its obligations to contractors and subcontractors, and that these damages should be offset against any recovery available to AFF.

Lake Forest initially presented this assertion as a counterclaim and later asked the court to consider it as an affirmative defense, which the court is permitted to do under Federal Rule of Civil Procedure 8(c). See Fed.R.Civ.P. 8(c) ("When a party has mistakenly designated a defense as a counterclaim ... the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation."). The district court did consider Lake Forest's assertion as an affirmative defense, but nevertheless held that because Lake Forest did not first submit its claim to the RTC under the administrative scheme for adjudicating claims detailed in 12 U.S.C. 1821(d), it had not exhausted its administrative remedies, and thus the court did not have subject matter jurisdiction to consider its claim.³

Section 1821(d)(13)(D) provides:

Except as otherwise provided in this subsection, no court shall have jurisdiction over--

(i) any claim or action for payment from, or any action seeking a determination of the rights with respect to, the assets of any depository institution for which the [RTC] has been appointed receiver, including assets which the [RTC] may acquire from itself as such receiver; or

(ii) any claim relating to any act or omission of such institution or the Corporation as receiver.

12 U.S.C.A. 1821(d)(13)(D) (West 1989). Section 1821(d)(6) permits claimants to seek judicial review after a claim has been disallowed or if 180 days expire without a determination by the RTC.

As the Third Circuit has parsed it, the plain language of this section thus divests the district court of jurisdiction over requests for relief which can be characterized as:

(1) claims for payment from assets of any depository institution for which the RTC has been appointed Receiver;

(2) actions for payment from assets of such depository institutions;

(3) actions seeking a determination of rights with respect to the assets of such depository institutions; and

(4) a claim relating to any act or omission of such institution or the RTC as receiver.

National Union Fire Ins. v. City Sav., 28 F.3d 376, 393 (3d Cir.1994). There is consensus among the circuits that all claims that fall into these categories are subject to the exhaustion...