FDIC v. FSSS, A92-719-CIV.

• Decision Date: 04 June 1993
• Docket Number: No. A92-719-CIV.,A92-719-CIV.
• Citation: 829 F. Supp. 317
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Plaintiff, v. F.S.S.S., an Alaska partnership; et al., Defendants.
• Court: U.S. District Court — District of Alaska

829 F. Supp. 317

FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Plaintiff, v. F.S.S.S., an Alaska partnership; et al., Defendants.

No. A92-719-CIV.

United States District Court, D. Alaska.

June 4, 1993.

COPYRIGHT MATERIAL OMITTED

Robert C. Auth, Staff Atty., F.D.I.C., Anchorage, AK, for plaintiff.

David H. Bundy, Bundy & Christianson, Anchorage, AK, for defendants.

ORDER

SEDWICK, District Judge.

Plaintiff Federal Deposit Insurance Corporation (FDIC) has pending before this court two motions: a Motion to Dismiss Certain Counterclaims for Lack of Jurisdiction and Failure to State a Claim, and a Motion for Partial Summary Judgment. The Motion to Dismiss Counterclaims is directed at defendants' first and second counterclaims for negligence and interference with a prospective contract respectively. Additionally, FDIC has moved for partial summary judgment on its claims for default of two promissory notes. Defendants F.S.S.S., Thomas A. Fink, Donald C. Schroer, David P. Swanson, Marie O. Swanson, Patricia A. Fink, and LaVonne D. Schroer (collectively, the "defendants") opposed both motions. Defendants have also requested that the court stay the present proceedings so that they may pursue administrative relief against FDIC arising from its management of a separate loan obligation.

FACTS

FDIC seeks a judgment against defendants Thomas A. Fink, Donald C. Schroer, David Swanson, and Marie Swanson, jointly and severally, on two promissory notes dated November 5, 1984, one in the principal amount of $500,000 (First Note) and the second in the principal amount of $1,200,000 (Second Note). The First Note was secured by a second deed of trust on real property commonly referred to as the FSSS Building.¹ The Second Note is secured by a deed of trust on real property commonly referred to as the 5th Avenue Property, located at 1801 East 5th Avenue, Anchorage, Alaska.² FDIC sues defendants Patricia Fink and LaVonne Schroer on their guarantees on both notes.³

Defendants raise several affirmative defenses and counterclaims against FDIC arising from FDIC's alleged failure to promptly approve a transaction involving the security for the First Note. First Interstate Bank of Oregon held 90 percent of the beneficial interest in another promissory note made and guaranteed by the defendants, originally to Alaska Mutual Bank (the "Senior Note"). The Senior Note was secured by a senior deed of trust on the FSSS Building, the same property securing defendants' obligation under the First Note. As a result of AMB's failure, FDIC also acquired AMB's remaining 10 percent interest in the Senior Note and status as servicing institution. In March 1990, FDIC sold its remaining interest in the Senior Note to First Interstate, which recently foreclosed on the FSSS Building.

In November 1989, defendants Schroer, David Swanson, and Marie Swanson met with First Interstate to discuss defendants' obligations with respect to the Senior Note. First Interstate agreed to discount defendants' obligations on the Senior Note by $800,000, and to accept $600,000 in full settlement of FSSS' obligations. As a condition to the settlement, First Interstate required defendants to obtain approval from FDIC. The FDIC required full payment of their participation interest. Defendants maintain that they were able and willing to meet this demand.⁴

FDIC never approved the transaction. But for FDIC's actions, argue defendants, the First Note would have been fully secured by the property. Further, defendants argue that had the transaction occurred, defendants would have been able to meet their other obligations, including the Second Note. Defendants assert setoff, comparative negligence and impairment of collateral as affirmative defenses. Additionally, defendants assert counterclaims for negligence, interference with a prospective contract, and that FDIC breached its express and implied contractual duties as lender and servicing agent on the transaction. In sum, defendants argue that FDIC wrongfully refused to approve the discount, and that refusal to do so requires that their obligation be reduced by the lost benefit.

DISCUSSION

The undisputed facts demonstrate that defendants are liable. Defendants do not dispute that they are obligated to plaintiff under the First and Second Notes, and that they are in default on those notes.⁵ Therefore, FDIC has demonstrated its right to summary judgment on the promissory notes.

Once the moving party points out why no genuine issues of fact exist, the party resisting summary judgment must set forth "specific facts showing that there is a genuine issue for trial."⁶Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In resolving the motion for summary judgment, all reasonable inferences will be drawn in favor of the nonmovants. Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). However, where the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence to defeat summary judgment than ordinarily would be required. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Defendants argue that material questions of disputed fact exist that preclude summary judgment. Defendants rely upon the questions raised in their affirmative defenses and counterclaims; that FDIC negligently failed to approve the discount offered by First Interstate to defendants, interfered with a prospective contract, and breached its express and implied contractual duties as lender and servicing agent of the Senior Note. Defendants claim that FDIC's failure to approve the settlement on the Senior Note either discharges their obligations under the First and Second Notes or, at a minimum, entitles defendants to setoff their losses against the amounts owed under those notes.

I. FEDERAL TORT CLAIMS ACT

FDIC argues that defendants' counterclaims do not preclude summary judgment because defendants failed to comply with the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq. Specifically, FDIC argues that defendants failed to file an administrative claim with it, as the responsible agency, prior to bringing their counterclaims as required by 28 U.S.C. § 2675(a).⁷ Defendants respond that their counterclaims are in the nature of setoff, and, therefore, the FTCA does not apply. Defendants assert in their counterclaims that FDIC negligently refused to approve the discount, and tortiously interfered with a prospective contract, damaging them in excess of $800,000. Defendants also assert setoff as an affirmative defense.⁸

The doctrine of sovereign immunity dictates that the government may be sued only on such terms as it may prescribe. Loeffler v. Frank, 486 U.S. 549, 555, 108 S.Ct. 1965, 1969, 100 L.Ed.2d 549 (1988). The FTCA waives sovereign immunity for tort claims against the United States and is generally recognized as applicable to claims against FDIC. Safeway Portland Employees' Federal Credit Union v. Federal Deposit Ins. Corp., 506 F.2d 1213, 1215 (9th Cir. 1974).⁹ However, to bring a tort claim against a federal agency, one must comply with all statutory prerequisites, including the requirement that the plaintiff first bring its claim before the responsible federal agency, 28 U.S.C. § 2675(a), and must sue the United States rather than the federal agency, 28 U.S.C. § 2679(a). These requirements are jurisdictional and may not be waived. Spawr v. United States, 796 F.2d 279 (9th Cir.1986).

Equally well established is the principle that once the United States brings a suit, it waives sovereign immunity to the extent that defendants may have a compulsory counterclaim.¹⁰Id. Claims for recoupment are compulsory counterclaims under Fed.R.Civ.P. 13(a), but a claim for setoff states a permissive counterclaim under Rule 13(b). Federal Deposit Ins. Corp. v. Carter, 701 F.Supp. 730, 733 (C.D.Cal.1987).¹¹ A claim for recoupment is one that: 1) arises from the same transaction or occurrence as the government's claim, 2) seeks relief of the same kind or nature, and 3) seeks an amount not in excess of the government's claim. Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967).

The threshold question presented by defendants' counterclaims is whether the Senior Note constitutes a separate obligation or is part of the "same transaction or occurrence" as the First and Second Note. The parties agree that the defendants and Alaska Mutual Bank entered into the Senior Note sometime in the mid-1970's, several years prior to the creation of the First and Second Notes. Although the parties to all the notes were identical, as was the security for the Senior and First Notes, the Senior Note clearly constitutes a separate contract and a separate obligation entered into by the parties years prior to the obligations upon which they are sued today. The Senior Note was not part of the same transaction or occurrence as the First or Second Notes.

The acts giving rise to defendants' counterclaims pertain to their obligations under the Senior Note. Defendants, therefore, do not have compulsory counterclaims for recoupment, but rather permissive counterclaims for setoff. Because defendants' counterclaims are not compulsory, defendants must comply with the FTCA. Because they have not, the court is without jurisdiction to decide defendants' counterclaims.

The court notes that even if defendants had complied with the above requirements, and assuming FDIC owed a duty to defendants to competently manage the Senior Note, the alleged failure to do so does not aid defendants. The discretionary function exception to the FTCA bars any claim against FDIC:

based upon an act or omission of the Government, exercising due care, in the execution of a statute or regulation ... or based upon the exercise or performance or the failure to exercise or perform a

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