Federal Deposit Ins. Corp. v. Renda

• Decision Date: 28 June 1988
• Docket Number: Civ. A. No. 85-2116-O.
• Citation: 692 F. Supp. 128
• Court: U.S. District Court — District of Kansas
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, and Federal Deposit Insurance Corporation, in its capacity as Receiver of Indian Springs State Bank, and Federal Savings & Loan Insurance Corporation, an agency of the United States of America, Plaintiffs, v. Mario RENDA, et al., Defendants.

692 F. Supp. 128

FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, and Federal Deposit Insurance Corporation, in its capacity as Receiver of Indian Springs State Bank, and Federal Savings & Loan Insurance Corporation, an agency of the United States of America, Plaintiffs, v. Mario RENDA, et al., Defendants.

Civ. A. No. 85-2116-O.

United States District Court, D. Kansas.

June 28, 1988.

COPYRIGHT MATERIAL OMITTED

Mark W. McGrory, Michael C. Manning, Brian E. Gardner, Marc E. Elkins, James W. Howard, Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, Kan., Daniel W. Persinger, Deputy Gen. Counsel, Christopher A. Byrne, Sr. Atty., Federal Deposit Ins. Corp., Washington, D.C., for Federal Deposit Ins. Corp. and Federal Sav. & Loan Ins. Corp.

Dorothy L. Nichols, Loretta R. Pitt, John B. Beaty, Office of the Gen. Counsel, Federal Home Loan Bank Bd., Washington, D.C., for additional plaintiffs.

Renate Winkler, Honolulu, Hawaii, pro se.

Sammy G. Daily, Sam Daily Realty, Inc., Kaneohe, Hawaii, pro se.

Ron Gooding, Steven M. Dickson, Dickson & Pope, Topeka, Kan., for Sammy G. Daily and Sammy Daily Realty, Inc.

Edward C. Schmidt, Roy A. Powell, Andrea Kurtz, Rose, Schmidt, Hasley & DiSalle, Pittsburgh, Pa., for Nina Associates, Ltd. and Antoinette Renda.

Ronald G. Russo, Shira A. Scheindlin, Richard A. Greenberg, Elliott Louis Pell, New York City, James Wyrsch, Susan M. Hunt, Carl Cornwell, Horner, Duckers & Cornwell, Kansas City, Kan., for Mario Renda, Southbrook Homes, Inc., Nina Associates, Ltd., First United Realty Co., First United Fund, Ltd. and First United Financial Corp.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on the motion of the plaintiffs Federal Deposit Insurance Corporation (FDIC) and Federal Savings and Loan Insurance Corporation (FSLIC) to dismiss counterclaims and strike certain affirmative defenses. The FDIC, in its corporate capacity and its capacity as receiver for the Indian Springs State Bank (ISSB) and the Rexford State Bank (RSB), and the FSLIC in its corporate capacity as the holder and owner of certain claims assigned to it by the Coronado Federal Savings and Loan Association of Kansas City (Coronado), brought this action alleging violations of the Racketeer Influenced and Corrupt Organizations Act, see 18 U.S.C. §§ 1961 et seq., securities laws violations, and state law claims including common law fraud. The defendants named in the second amended complaint include, among others, Mario Renda, the Corporate Renda Defendants,¹ Antoinette Renda and Nina Associates, Ltd. (Nina Defendants), and Sammy G. Daily and Sam Daily Realty, Inc. (Daily Defendants). The essence of the plaintiffs' second-amended complaint is that the defendants devised a complicated "linked financing" scheme to profit from the acquisition of fraudulent and illegal loans. Targets of the alleged scheme included ISSB, RSB, and Coronado.

The defendants' answers to the plaintiffs' second-amended complaint assert a number of affirmative defenses and counterclaims which the plaintiffs contend should be stricken and dismissed. The following is a summary of these affirmative defenses and counterclaims:

The Corporate Renda Defendants' affirmative defenses in question are numbered 8 through 15:

8. The plaintiffs' claims are barred because no actions or inactions on the part of the Corporate Renda Defendants caused the plaintiffs' alleged damages.

9. The plaintiffs' damages, if any, were caused by the plaintiffs' own negligence and failure to properly assert their regulatory and supervisory authority.

10. The Corporate Renda Defendants are not liable for losses sustained by the FDIC in its capacity as receiver for ISSB because no action or inaction by the Corporate Renda Defendants was the proximate cause of ISSB's failure.

11. The Corporate Renda Defendants are not liable for losses sustained by the FDIC as receiver for RSB because no action or inaction on the part of the Corporate Renda Defendants was the proximate cause of RSB's failure.

12. The Corporate Renda Defendants are not liable for losses sustained by the FSLIC as receiver for Coronado because no action or inaction on the part of the Corporate Renda Defendants was the proximate cause of Coronado's failure.

13. The Corporate Renda Defendants are not liable for the costs of administration or liquidation incurred by the FDIC in its corporate capacity in connection with the closing of ISSB because no action or inaction by the Corporate Renda Defendants was the proximate cause of ISSB's failure.

14. The Corporate Renda Defendants are not liable for the costs of administration or liquidation incurred by the FDIC in its corporate capacity in connection with the closing of RSB because no action or inaction by the Corporate Renda Defendants caused RSB's failure.

15. The Corporate Renda Defendants are not liable for the costs of administration or liquidation incurred by the FSLIC in its corporate capacity in connection with the closing of Coronado because no action or inaction by the Corporate Renda Defendants caused Coronado's failure.

The Daily Defendants' affirmative defenses in question are also numbered 8 through 15 and are identical to those of the Corporate Renda Defendants.

The Nina Defendants' affirmative defenses in question are numbered 8 through 12 and 24:

8. The plaintiffs' damages, if any, were caused in whole or in part by the plaintiffs' acts, omissions, negligence, or fault, and not by any wrongdoing on the part of the Nina Defendants.

9. The Nina Defendants are not liable for the FDIC's alleged losses as receiver for the ISSB because no action or inaction by the Nina Defendants caused the ISSB's failure.

10. The Nina Defendants are not liable for the costs of administration or liquidation allegedly incurred by the FDIC in its corporate capacity in connection with the closing of ISSB because no action or inaction by the Nina Defendants caused the ISSB's failure.

11. The Nina Defendants are not liable for the costs of administration or liquidation allegedly incurred by the FDIC in its corporate capacity in connection with the closing of RSB because no action or inaction by the Nina Defendants caused the RSB's failure.

12. The Nina Defendants are not liable for the costs of administration or liquidation allegedly incurred by the FSLIC in its corporate capacity in connection with the closing of Coronado because no action or inaction by the Nina Defendants caused Coronado's failure.

24. The plaintiffs' damages, if any, were caused in whole or in part by the acts, omissions, negligence, or fault of the officers and directors of ISSB, RSB, and Coronado, and/or by others, including the FDIC and the FSLIC, and not by any wrongdoing by the Nina Defendants.

The counterclaims of the Corporate Renda Defendants, the Daily Defendants, and the Nina Defendants, are identical:

1. The FDIC, acting as receiver for ISSB, was grossly negligent in failing to pursue claims against ISSB's president, William Lemaster, and other officers and directors of ISSB.

2. Because of the above negligence, any liability found on the part of the defendants should be reduced by an amount not less than that sought by the FDIC in actions it brought against Lemaster and other officers and directors, which were later determined untimely.

3. The FDIC negligently failed to intervene and operate ISSB in accordance with the terms included in its own cease and desist order, and this failure was the proximate cause of ISSB's failure; thus, the plaintiffs' damages, if any, should be reduced because of the FDIC's negligence.

4. The FDIC negligently failed to mitigate damages resulting from RSB's failure, and the plaintiffs' damages, if any, should be reduced by the FDIC's negligence.

5. The FSLIC negligently failed to mitigate damages resulting from Coronado's failure, and the plaintiffs' damages, if any, should be reduced by the FSLIC's negligence.

6. The FSLIC negligently failed to intervene and properly operate Coronado in spite of knowledge of unsound practices, and the plaintiffs' damages, if any, should be reduced by the FSLIC's negligence.

Federal Rule of Civil Procedure 8(c) describes affirmative defenses:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

Fed.R.Civ.P. 8(c). Matters which are in issue from the complaint's inception need not be pleaded as affirmative defenses, see Rochholz v. Farrar, 547 F.2d 63, 65 n. 3 (8th Cir.1976), as such matters will not take the plaintiff by surprise if later raised by the defendant. See 5 Wright, Miller & Kane, Federal Practice and Procedure § 1271 (1969).

Pleading of counterclaims is described in Federal Rule of Civil Procedure 13:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire

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