First Texas Sav. Ass'n v. COMPROP INV. PROPERTIES

• Decision Date: 08 November 1990
• Docket Number: No. 89-93-CIV-T17(A).,89-93-CIV-T17(A).
• Parties: FIRST TEXAS SAVINGS ASSOCIATION, First Gibraltar Bank, FSB, Plaintiffs, v. COMPROP INVESTMENT PROPERTIES LTD., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

752 F. Supp. 1568

FIRST TEXAS SAVINGS ASSOCIATION, First Gibraltar Bank, FSB, Plaintiffs, v. COMPROP INVESTMENT PROPERTIES LTD., et al., Defendants.

No. 89-93-CIV-T17(A).

United States District Court, M.D. Florida, Tampa Division.

November 8, 1990.

Gregory E. Mierzwinski, Henry A. Stein, Rudnick & Wolfe, Tampa, Fla., for plaintiffs.

Simson Unterberger, Tampa, Fla., for Glenn James, receiver.

Edward M. Waller, Jr., Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., John A. Grant, Jr., Peavyhouse, Grant, Clark, Charlton, Opp & Martino, P.A., Gregory R. Riehle, Shumaker, Loop & Kendrick, Edna Elliott, J.D., P.A., Timothy A. Hunt, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Tampa, Fla., Michael B. Lee, Fouts & Moore, Houston, Tex., Clifford R. Opp, Jr., Peavyhouse, Grant, Clark, Charlton, Opp & Martino, P.A., Tampa, Fla., for defendants.

ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiffs, First Gibraltar Bank, FSB and the Federal Deposit Insurance Corporation as Receiver of First Texas Savings Association's Motion for Partial Summary Final Judgment as to the Counterclaims and Affirmative Defenses raised by Defendants/Counterclaimants Comprop Investment Properties, Ltd., Gulf South Resources, Inc., Harvey T. Estes and Suzan Estes on the grounds that

1. Defendants allegedly waived all defenses against the enforcement of the loan documents when they executed two forbearance agreements.

2. Any defenses or claims that Defendants may have had against First Texas, did not survive as against the FDIC or First Gibraltar by action of the D'Oench Duhme doctrine.

FACTS

The uncontroverted facts as alleged in Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment indicate the following:

1. Plaintiff, First Texas and Defendants Comprop Investment Properties, Ltd. through its general partner, Gulf South Resources, Inc., entered into an agreement for construction loan financing on real property located in Hillsborough County, Florida. This financing was secured by a First Real Estate Mortgage and Security Agreement and a personal guaranty that was executed by the Co-Defendants, Harvey and Suzan Estes.

2. The Note contained a one-year term and was to mature in December of 1986.

3. Prior to the maturity date of the note, a Renewal and Extension agreement was entered into by the parties extending the maturity date to March 19, 1987.

4. Subsequently, two forbearance of enforcement agreements were entered into between the parties, extending the time for Defendants' performance until August 31, 1987.

5. In October of 1987, First Texas commenced an action to foreclose the Mortgage and to enforce the Note and Guaranty provisions against the parties.

6. Defendants, Comprop and the Estes, asserted affirmative defenses and counterclaims, alleging, inter alia, bad faith, fraudulent inducement and breach of contract by First Texas.

7. On December 27, 1988, the Federal Home Loan Bank Board declared First Texas to be insolvent and appointed the FSLIC as Receiver for First Texas.

8. On December 28, 1988, pursuant to an acquisition agreement between the FSLIC and First Gibraltar, First Gibraltar acquired all of the secured assets of the insolvent First Texas, which included the collective loan documents for Comprop and the Estes (i.e. the Note, Mortgage, Guaranty, Renewal and the Forbearance agreements).

9. On January 19, 1989, this Court granted FSLIC's Petition for Removal of this action from the Thirteenth Judicial Circuit Court in and for Hillsborough County, and by Order dated April 11, 1989, this Court granted First Gibraltar's Motion to Intervene as Party Plaintiff.

10. On August 9, 1989, the Financial Institutions Reform, Recovery and Enforcement Act of 1989, P.L. 101-73, 103 Stat. 183 ("FIRREA") was signed into law, and all of the FSLIC's interest in the unsecured liabilities of First Texas were assigned to the FDIC, as manager of the FSLIC Resolution Fund.

Other facts relative to the loan agreement between First Texas and Defendants are disputed. In August, 1985, First Texas issued a Construction Loan Commitment to Comprop. It is here that the parties disagree upon the facts.

1. Defendants allege that First Texas agreed to provide a Construction loan as well as a Permanent loan commitment.

2. Defendants paid a commitment fee, an application fee and other fees in order to secure both the construction loan and the permanent financing from First Texas and The Windsor Group.

3. After loan documents were executed between the parties, Defendants allege that First Texas breached its written agreements by failing to timely fund draw requests, delaying funding unreasonably and requiring unreasonable demands from obligors, that exceeded the scope of the parties' agreements.

4. Defendants further allege that First Texas reneged on its Permanent Financing commitment. As a result, Plaintiff, First Texas' actions prevented timely completion of the construction project and made Defendants' performance impossible.

Plaintiffs allege:

1. Defendants waived any and all defenses to enforcement of the loan documents and counterclaims by virtue of their subsequent execution of Renewal, Forbearance and Modification Agreements.

2. In addition, any oral representations allegedly made by First Texas are unenforceable because the FSLIC and First Gibraltar acquired the subject loan documents free from all defenses and claims pursuant to the D'Oench, Duhme doctrine.

STANDARD OF REVIEW

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the non-moving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),

In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Id. 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

The Court also said, "Rule 56(e) therefore requires that non-moving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. The Court is satisfied, and the parties have stipulated, that no factual issues are in dispute which would prevent entry of summary judgment.

Before the Court are the following questions:

1. Did Defendant/Counterclaimants Comprop and the Estes effectively waive all claims to and defenses against their loan contract with First Texas Savings Association?

2. Did the FSLIC and subsequently First Gibraltar acquire the loan documents free from all defenses and claims asserted against Defendants/Counterclaimants First Texas by Comprop and the Estes?

DISCUSSION

I.

Several facts in the Plaintiffs' case have not been proven, and as a result, this Court is unable to grant summary judgment. A critical factor is that this Court has determined that ambiguities exist in the collective loan documents, which prevent it from rendering judgment without further fact finding. First, the Real Estate Mortgage and Security Agreement dated December 19, 1985 implies by reference to the U.C.C.'s adoption in Florida, that Florida law is controlling in the event of a dispute. (See page 2 paragraph G.) Second, the Renewal and Extension of Note executed December 18, 1990, indicates that applicable federal or Texas law should control disputes. (See page 5, paragraph 11). Third, the agreement dated May 1, 1987 indicates that the parties' agreement must be governed by and construed in accordance with the laws of the State of Florida. (See page 5 paragraph 10). Finally, in D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942) the Supreme Court decided that federal law governs in cases involving the rights of the FDIC, and when no federal statutes are applicable, the Court must turn to federal common law.¹ These ambiguities place the burden upon the Court to harmonize the laws where possible or otherwise determine the parties' intent regarding which law should control.

Insofar as contract language may be deemed ambiguous, Florida law dictates that any ambiguity will be interpreted against the party who selected the language. Further, this principle of law is applicable to mortgages. Consolidated Development & Engineering Corp. v. Ortega Co., 117 Fla. 438, 158 So. 94 (1934); Rose v. Lurton Co., 111 Fla. 424, 149 So. 557 (1933). Under federal law, a party who drafts an agreement can expect to have ambiguities contained in the agreement construed against him and in favor of the non-drafting party. Gibbs v. Air Canada, 810 F.2d 1529 (11th Cir.1987), rehearing denied 816 F.2d 688; Magnum Marine Corp., N.V. v. Great American Insurance Co., 640 F.Supp. 1142 (S.D.Fla.1986), reversed 835 F.2d 265. Further, under Texas law, since forfeitures are not favored, if the terms of a contract are fairly susceptible of an interpretation which will prevent forfeiture, Texas courts are inclined to so construe them. Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (1949). However, in the...