Calaska Partners Ltd. v. Corson

• Decision Date: 07 March 1996
• Docket Number: Docket No. CUM,No. 7571,7571
• Citation: 672 A.2d 1099
• Parties: 31 UCC Rep.Serv.2d 1066 CALASKA PARTNERS LTD. v. Inger E. CORSON, et al. DecisionLaw94 932.
• Court: Maine Supreme Court

Page 1099

672 A.2d 1099

31 UCC Rep.Serv.2d 1066

CALASKA PARTNERS LTD. v. Inger E. CORSON, et al.

Decision No. 7571.

Law Docket No. CUM 94 932.

Supreme Judicial Court of Maine.

Argued Dec. 4, 1995.

Decided March 7, 1996.

Randall B. Weill (orally) Preti, Flaherty, Beliveau & Pachios, Portland, for Plaintiffs.

U. Charles Remmel (orally) and Leland N. Chisholm, Kelly, Remmel & Zimmerman, Portland, for defendants.

Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

Inger Corson appeals and Calaska Partners cross-appeals from the judgment entered in the Superior Court (Cumberland County, Brodrick, J.) following a nonjury trial in which the court determined that Maine Savings Bank, one of Calaska's predecessors in interest on a loan, had violated the Equal Credit Opportunity Act (ECOA), 15 U.S.C.A. §§ 1691-1691f (1982 & Supp.1994), ¹ by requiring Inger to cosign on a note to evidence a line of credit and a mortgage as security for a line of credit that was solely for the benefit of her husband, David, who was at that time individually creditworthy. In acknowledgement of the violation, although the court ordered a foreclosure of the mortgage and a sale of the family residence owned jointly by Inger and David, it ordered that Inger receive fifty percent of the net proceeds of the sale. We agree with Inger that the court erred in ordering a foreclosure of the mortgage and a sale of the entire residence when only David was a judgment-debtor. Accordingly, we vacate the judgment.

Inger and David Corson are a married couple living in the town of Yarmouth. David is a practicing attorney and Inger is a homemaker. The Corsons hold title to their family residence located in Yarmouth as joint tenants. In 1984, due to financial peaks and valleys associated with his law practice, David applied to Maine Savings Bank (MSB) for a $200,000 line of credit to stabilize the cash flow of his law practice and to finance long-term improvements to his law office; Inger was not to receive any of the proceeds of the loan.

To obtain the loan, David submitted to MSB a personal financial statement listing the value of David's real estate, stock, and insurance holdings. ² Although David's individual share of the net real estate exceeded $600,000, MSB conditioned its extension of credit on obtaining both David and Inger's signatures on a note and mortgage encumbering the family residence.

Richard Rummler, the MSB loan officer responsible for David's application, testified that his decision to extend the $200,000 line of credit to David was based solely on the valuation placed on the Corson family residence. The decision to focus solely on the residence as collateral for the credit line was based in part on purported weaknesses in David's other assets and, in part, on the fact that it was a longstanding practice in the industry "to obtain the signature of both spouses on the loan document" when only one spouse applied for a loan.

In 1985, at David's request, MSB increased his credit line to $250,000. In 1988, David obtained an additional $200,000 from Key Bank, secured by a second mortgage on the Corson family residence. When David's credit line with MSB matured in September of 1988, the loan became delinquent and MSB suggested that David refinance the debt with a conventional mortgage with a different lender. After David's unsuccessful attempt to refinance the debt with another lender, MSB agreed to restructure the debt with repayment terms similar to a thirty-year mortgage loan with the balance due at the end of two years. Collateral for the restructured MSB loan was the 1984 mortgage on the family residence. The loan became due in January 1991, with an outstanding balance of $247,084.

On February 1, 1991, the Federal Deposit Insurance Corporation (FDIC) was appointed receiver of MSB. On that same date, Fleet Bank entered into a purchase and assumption agreement with the FDIC to take over certain of MSB's assets, including the Corson loan. Thereafter, on March 29, 1991 Fleet instituted foreclosure proceedings against the Corsons. ³ In their answer, David and Inger alleged that MSB had violated the ECOA by requiring Inger's signature on the note and mortgage. Following a hearing, the court (Perkins, J.) denied Fleet's motion for a summary judgment, finding that a triable issue remained as to whether MSB had violated the ECOA. Fleet thereafter sold the Corson loan to Calaska and, on March 17, 1994, Calaska was substituted as party plaintiff in place of Fleet.

Following a nonjury trial, the court (Brodrick, J.) determined that David was individually creditworthy at the time he first applied for a line of credit with MSB and that MSB had violated "the spirit and the letter" of the ECOA by requiring Inger's guaranty despite David's personal financial wherewithal. The court entered judgment in favor of Calaska against David personally in the amount of $247,084; in favor of Inger on the note; and a foreclosure against the property owned jointly by David and Inger, but with Inger to receive fifty percent of the net proceeds of the sale. Inger appeals and Calaska cross-appeals from the judgment.

I.

As an initial matter, Calaska contends that pursuant to section 1821(d)(13)(D) ⁴ of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), the court was without jurisdiction to entertain Inger's ECOA affirmative defense. We disagree.

FIRREA contains an Administrative Claims Review Process (ACRP), 12 U.S.C.A. §§ 1821(d)(3)-(10), designed to facilitate resolution of claims against receivers. FIRREA requires exhaustion of the administrative remedies provided within the ACRP before any court may obtain subject matter jurisdiction over a claim or action against the assets of a failed financial institution. Simon v. F.D.I.C., 48 F.3d 53, 56 (1st Cir.1995). The issue before us, however, is whether affirmative defenses are likewise subject to this exhaustion requirement. ⁵ Although the federal courts that have examined this issue have not all come to the same conclusion, ⁶ the best reasoned of the cases have concluded that affirmative defenses are not subject to FIRREA's administrative exhaustion requirement and may be asserted for the first time in a non- ACRP proceeding. Accordingly, the court had jurisdiction to considers Inger's ECOA defense.

II.

Calaska next contends that the FDIC was a holder in due course (HDC) and therefore took the Corson note free from Inger's personal ECOA defense. As a subsequent purchaser of the note, Calaska contends it acquired that same status. The first question is whether federal or state HDC requirements govern the determination of Calaska's status.

The First Circuit Court of Appeals has reiterated and applied the federal holder in due course doctrine in situations where the FDIC becomes the receiver of a failed financial institution:

[A]s a matter of federal common law, the FDIC has a complete defense to state and common law fraud claims on a note acquired by the FDIC in the execution of a purchase and assumption transaction, for value, in good faith, and without actual knowledge of the fraud at the time the FDIC entered into the purchase and assumption agreement.

In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1350 (1st Cir.1992) (emphasis added) (citation omitted). A recent United States Supreme Court decision, however, has called into question whether the federal holder in due course doctrine remains viable.

In O'Melveny & Myers v. F.D.I.C., 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), the United States Supreme Court held that FIRREA requires the receiver to "step[ ] into the shoes of the failed [institution] ... [and] [t]hereafter ... any defense good against the original party is good against the receiver." O'Melveny & Myers, 512 U.S. at ----, 114 S.Ct. at 2054 (internal quotations and citations omitted). The receiver must therefore "work out its claims under state law, except where some provision in the extensive framework of FIRREA provides otherwise. To create additional 'federal common-law' exceptions is not to 'supplement' this scheme, but to alter it." Id. Courts that have examined this issue in the "post-O'Melveny era" have determined that HDC status is a question of state law. DiVall Insured Income Fund Ltd Partnership v. Boatmen's First Nat'l Bank of Kansas City, 69 F.3d 1398, 1402-03 (8th Cir.1995) ("Accordingly, we hold that O'Melveny removes the federal common law D'Oench Duhme doctrine and the federal holder in due course doctrine.... [T]he holder in due course issue must be decided under state law."); Resolution Trust Corp. v. Maplewood Investments, 31 F.3d 1276, 1293-94 (4th Cir.1994) (question of whether RTC is an HDC is governed by state law); Resolution Trust Corp. v. A.W. Assoc., Inc., 869 F.Supp. 1503, 1510 (D.Kan.1994) (citing O'Melveny for the proposition that the court "must apply [state] law to determine whether RTC is a holder in due course."). We agree with this interpretation of the O'Melveny decision and we therefore must look to Maine law to determine whether Calaska is entitled to HDC status.

Under Maine law, the holder of an instrument achieves HDC status if the holder complies with the requirements of 11 M.R.S.A. § 3-1302 (1995). ⁷ The court in A.W. Assoc. determined, pursuant to an identical version of section 302, ⁸ that HDC status is not conferred "when the financial instruments are transferred in bulk to the RTC." Id. at 1510. "Courts have concluded that [section 302] applies to the transfer of instruments to the FDIC (or RTC) pursuant to a purchase and assumption agreement and have determined that such a transaction is not 'in the ordinary course' of the savings and loan's business." Id. at 1509 (citations omitted). Because the FDIC in the instant case did not achieve HDC status under Maine law by virtue of its purchase and assumption of MSB, Calaska did not acquire such status merely because...