Lindy v. Lynn
| Decision Date | 27 June 1974 |
| Docket Number | No. 73-2056,73-2056 |
| Citation | 501 F.2d 1367 |
| Parties | Philip B. LINDY t/a Fountain View Apts., a Pennsylvania Limited Partnership, Appellant, v. James LYNN, Secretary of Housing and Urban Development, et al. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Victor Wright, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for appellant.
John K. Villa, Dept. of Justice, Irving Jaffe, Acting Asst. Atty. Gen., Washington, D.C., Victor L. Schwartz, Asst. U.S. Atty., Philadelphia, Pa., for appellees Lynn, Kingman, LaSala and United States.
H. Kenneth Tull, Wright, Thistle & Gibbons, Philadelphia, Pa., for appellee Frankford Trust Co.
Before MARIS, HUNTER and GARTH, Circuit Judges.
This is an appeal from the judgment of the district court dismissing the plaintiff's cause of action on the merits. Plaintiff, Philip B. Lindy, trading as Fountain View Apartments, had obtained from Metropolitan Federal Savings and Loan Association a mortgage loan to finance the construction of a large apartment building in Philadelphia. The mortgage loan was insured by the Federal Housing Administration. Pursuant to FHA regulations the mortgagee required the plaintiff to deposit with it the sums of $69,308.00 as working capital and $103,962.00 as a mortgage discount fee for which sums the mortgagee issued a Mortgagee's Certificate in the form prescribed by FHA. The additional sum of $21,400.00 was deposited by the plaintiff with the mortgagee pursuant to an Escrow Agreement, also in the form prescribed by FHA. These deposits were in the form of two letters of credit issued by Frankford Trust Company, of Philadelphia, one of the defendants. The plaintiff was unable to commence construction of the apartment project and defaulted on the mortgage, of which default the acting Area Director of the Department of Housing and Urban Development, one of the defendants, was notified. The assistant general counsel of that Department thereupon notified the mortgagee that its insurance claim would be debited with $194,710.00, the amount of the two letters of credit which it held.
The plaintiff thereafter filed the present complaint against the Secretary of Housing and Urban Development, the acting Federal Housing Commissioner, the acting Area Director of the Department of Housing and Urban Development, the federal defendants, and Frankford Trust Company, alleging that by the terms of the letters of credit and the provisions of the Mortgagee's Certificate and Escrow Agreement the letters of credit were issued for limited purposes which did not include the right of the Federal Housing Administration to debit or set off the amounts deposited against the mortgage insurance claim of the mortgagee. The complaint sought injunctive relief against any action by the defendants to that end. Upon consideration of a motion by the federal defendants for dismissal, the district court concluded that the documents involved, properly construed, did not support the plaintiff's contentions and it entered a judgment dismissing the plaintiff's cause of action. The appeal now before us followed.
We think that the district court should have dismissed the complaint for want of jurisdiction of its subject matter. The complaint alleges that jurisdiction is founded upon 28 U.S.C. 1331(a), which grants jurisdiction where the matter in controversy arises under the Constitution, laws, or treaties of the United States, 28 U.S.C. 1346(a)(2), the Tucker Act, which grants jurisdiction of civil actions against the United States, not exceeding $10,000.00 in amount, founded, inter alia, upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, 5 U.S.C. 701-706, which grant...
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... ... HUD relies upon the recent case of Trans-Bay Engineers & Builders v. Lynn, 396 F.Supp. 275 (D.D.C. 1975) to refute all of the theories under which AFFIC is proceeding. Alternatively, it argues that if the surety is deemed ... (See Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974).) Neither, quite clearly, is 28 U.S.C. 1337, providing for jurisdiction over proceedings arising under ... ...
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