Bu Realty Corp.. v. Fed. Deposit Ins. Corp..
| Citation | 436 B.R. 216 |
| Decision Date | 20 August 2010 |
| Docket Number | Nos. 10-CV-21307, 10-CV-22343.,s. 10-CV-21307, 10-CV-22343. |
| Parties | BANKUNITED FINANCIAL CORPORATION, BankUnited Financial Services, Inc., CRE America Corporation, and BU Realty Corporation, Plaintiffs, v. FEDERAL DEPOSIT INSURANCE CORPORATION, in its capacity as Receiver of BankUnited, FSB, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
OPINION TEXT STARTS HERE
Within the last two years, the world has experienced one of the worst banking crises in history. During that time, some 229 banks failed in the United States. These two cases, which are addressed in a single order due to substantial factual and legal overlap, present both novel and routine issues arising out of the failure of one of those banks- BankUnited, FSB. Case No. 10-22343 (the Bankruptcy Court Action) is before the Court on the FDIC Receiver's Motion to Withdraw Reference (D.E.# 1). Case No. 10-21307 (the District Court Action) is before the Court on the Plaintiffs' Motion for Summary Judgment as to Count I of Complaint (D.E.# 8) and the FDIC Receiver's Motion to Dismiss the Complaint (D.E.# 17). For the following reasons, the Motion to Withdraw Reference is granted in part and denied in part, the Motion for Summary Judgment is denied, and the Motion to Dismiss is denied without prejudice.
A. BankUnited, FSB Fails
On May 21, 2009, the Office of Thrift Supervision closed BankUnited, FSB and appointed the Federal Deposit Insurance Corporation as its receiver. The following day, BankUnited, FSB's parent holding company, BankUnited Financial Corporation, together with two additional of that parent's subsidiaries-BankUnited Financial Services, Inc. and CRE America Corporation-filed for protection under Chapter 11 of the Bankruptcy Code. Another subsidiary, BU Realty Corporation, did not file for bankruptcy protection but is named as a plaintiff in these proceedings. The following chart summarizes the status of each of the entities in these matters:
+---------------------------------------------------------------------------+
¦Entity ¦Status ¦Case Role ¦
+-----------------------------------+----------------------------+----------¦
¦BankUnited, FSB ¦In Receivership ¦ ¦
+-----------------------------------+----------------------------+----------¦
¦FDIC ¦Receiver for BankUnited, FSB¦Defendant ¦
+-----------------------------------+----------------------------+----------¦
¦BankUnited Financial Corporation ¦ ¦ ¦
+-----------------------------------+----------------------------+----------¦
¦BankUnited Financial Services, Inc.¦Chapter 11 Debtors ¦Plaintiffs¦
+-----------------------------------+----------------------------+----------¦
¦CRE America Corporation ¦ ¦ ¦
+-----------------------------------+----------------------------+----------¦
¦BU Realty Corporation ¦Non-Debtor Affiliate ¦ ¦
+---------------------------------------------------------------------------+
B. Receivership Files Claims Against Debtors
On November 16, 2009, the Receivership filed identical but separate proofs of claim in each of the Debtors' Chapter 11 cases for an amount in excess of $4.9 billion. This figure represents amounts that the Receivership believes may be owing to it under a tax sharing agreement among BankUnited, FSB and the Debtors, as well as capital maintenance obligations, insurance proceeds and premium refunds, and claims based on tort and fraudulent transfers.
C. The District and Bankruptcy Court Actions
As part of the receivership administrative process, the FDIC Receiver set August 27, 2009 as the last day for potential claimants to file claims against the Receivership. On that day, the Chapter 11 Debtors and their non-debtor affiliate BU Realty Corporation (together, the “Plaintiffs”) filed claims against the Receivership totaling $415 million. These claims include amounts that the Plaintiffs believe may be owing to them by BankUnited, FSB for use of real property, unpaid fees and commissions, usurped enterprise value, intellectual property use, customer list use, guaranties, artwork, political action committees, employee benefit contributions, taxes, income tax refunds, employee claims, professional expenses, intercompany advances, services rendered, fraudulent transfers and preferences, and other items. Critical to resolution of the principal interpretive issue in this matter, the FDIC Receiver failed to determine whether to allow or disallow the claims within the 180-day period established by Title 12 of the United States Code, which governs savings associations and savings and loan holding companies. Upon expiration of the 180-day period, the Plaintiffs exercised their rights under Title 12 by filing two substantially similar suits against the Receivership: the District Court Action, filed in this Court on April 22, 2010, and the Bankruptcy Court Action, filed on April 21, 2010 as an adversary proceeding in the Debtors' Chapter 11 cases. Neither party seeks a jury trial in the Bankruptcy Court Action.
There are essentially two significant differences between the Actions. First, only the District Court Action seeks a determination that the Plaintiffs' claims against the Receivership must be allowed because the FDIC Receiver failed to disallow them within the established 180-day period. Second, only the Bankruptcy Court Action seeks a determination that the Receivership's claims against the Debtors in their Chapter 11 cases should be disallowed. The following chart summarizes these and other, more minor, differences:
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