Mountain States Financial Resources v. Agrawal, CIV-91-839-C.

• Decision Date: 22 October 1991
• Docket Number: No. CIV-91-839-C.,CIV-91-839-C.
• Citation: 777 F. Supp. 1550
• Parties: MOUNTAIN STATES FINANCIAL RESOURCES CORPORATION, Plaintiff, v. Kris K. AGRAWAL, a/k/a K.K. Agrawal; and Vimala Agrawal, a/k/a V. Agrawal, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

777 F. Supp. 1550

MOUNTAIN STATES FINANCIAL RESOURCES CORPORATION, Plaintiff, v. Kris K. AGRAWAL, a/k/a K.K. Agrawal; and Vimala Agrawal, a/k/a V. Agrawal, et al., Defendants.

No. CIV-91-839-C.

United States District Court, W.D. Oklahoma.

October 22, 1991.

Bruce F. Klein, Clemens Holshouser Pate & Klein, Oklahoma City, Okl., for Mountain States Financial Resources Corp.

Roger O. Housley, James E. Pence, Pence & Housley, Norman, Okl., for Kris K. Agrawal and Vimala Agrawal.

Reginald D. Gaston, Jamie J. McGraw, Dist. Atty., Cleveland County, Norman, Okl., for Cleveland County Bd. of County Com'rs and Cleveland County Treasurer.

MEMORANDUM OPINION AND ORDER

CAUTHRON, District Judge.

I.

Plaintiff, an assignee of the Federal Deposit Insurance Corporation (FDIC), filed this action against defendants on June 7, 1991. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The complaint sets forth five causes of action:

1. A suit for collection of a promissory note, No. 1026712, dated June 14, 1984, executed in favor of the American Exchange Bank and Trust Company of Norman, Oklahoma;¹

2. A suit for collection of a promissory note, No. 1007734, dated September 1, 1983, executed in favor of the American Exchange Bank and Trust Company of Norman, Oklahoma;

3. A suit to foreclose certain mortgages securing note No. 1007734, describing certain real property in Cleveland County, Oklahoma;

4. A suit for collection of a promissory note, No. 1026380, dated June 7, 1984, executed in favor of the American Exchange Bank and Trust Company of Norman, Oklahoma; and

5. A suit to foreclose certain security interests in personal property collateral securing note No. 1026380.

II.

On August 7, 1991, defendants Kris Agrawal and Vimala Agrawal (collectively referred to as "defendants") filed their Motion to Dismiss and their answer. The motion to dismiss alleges that plaintiff's first cause of action has already been litigated in state court and is in judgment. Therefore, defendants argue, the issues on the note described in plaintiff's first cause of action are res judicata, and cannot be relitigated here.

Defendants next argue that the statute of limitations has run on plaintiff's claims. The parties to the notes executed several deferrals, but in any event, defendants argue that the statute of limitations to bring an action on either of the notes is five years, that the limitations period on note No. 1007734 expired on February 2, 1991, and that the limitations period on note No. 1026380 expired on February 26, 1991.

Finally, defendants argue that Vimala Agrawal did not execute one of the mortgages described in plaintiff's third cause of action, and she should therefore be dismissed from that claim.

Plaintiff responded to the motion to dismiss on August 22, 1991. Defendants Board of County Commissioners of Cleveland County and Cleveland County Treasurer (Cleveland County) have not responded. The motion to dismiss is ready for determination.

III.

A. Plaintiff's response to the motion to dismiss first argues that the motion was untimely filed and should be denied. Plaintiff argues that under Fed.R.Civ.P. 12(a), a defendant has only twenty days following service of summons in which to file a motion to dismiss. Plaintiff cites no authority for this argument. The Court finds the argument to be without merit. Rule 12(a) merely requires an answer to be filed within twenty days following service, but allows the time to be extended if a motion permitted under the rule is filed. Nothing in Rule 12(a) requires a motion to dismiss to be filed within twenty days of being served with summons.

B. Plaintiff next argues that pursuant to Rule 12(b), a motion to dismiss must be filed prior to a responsive pleading. Defendants' answer was filed on the same date as their motion to dismiss, and therefore, plaintiff argues, the motion to dismiss was not prior to the responsive pleading. The Court also finds this argument to be without merit. Only those defenses raised by Rule 12(b) are required to be raised in or before a responsive pleading. Motions to dismiss for res judicata or because claims are time-barred by a statute of limitation are not necessarily precluded because they were filed subsequent to answering. In this case, the motion to dismiss was filed contemporaneously with the filing of the answer, and the answer contained, as defenses, all of the defenses raised in the motion to dismiss. The Court finds that defendants' motion to dismiss is timely.

C. Plaintiff next argues that its complaint sufficiently pleads a cause of action and must survive a motion to dismiss for "failure to state a claim." Defendants have not raised such a defense. Clearly the complaint states a cause of action and defendants do not assert otherwise. Therefore the Court need not consider plaintiff's arguments regarding the sufficiency of pleading in the complaint.

D. Plaintiff next reaches the substantive arguments of defendants' motion to dismiss. Plaintiff argues that the claims are not time barred, because a six-year statute of limitation period provided to the FDIC by 12 U.S.C. § 1821(d)(14)(A) governs, and the claims are therefore timely. The Court is compelled to note that there is also a question of whether defendants executed certain deferral agreements.² If they did, it is at least possible that the claims could have been brought within Oklahoma's five-year limitations period. It is not necessary to reach that question, however, as the Court finds that the six-year limitations period provided by § 1821(d)(14)(A) is controlling.

The relevant federal statute confers upon the FDIC a six-year limitations period which begins to run, in this case, on the date the FDIC became the receiver of the failed bank. FDIC v. Hinkson, 848 F.2d 432 (3d Cir.1988); FDIC v. Farris, 738 F.Supp. 444 (W.D.Okla.1989). In this case, the bank failed on August 20, 1987. The date the FDIC was appointed receiver is not made known to the Court, but it obviously cannot be earlier than August 20, 1987. Assuming receivership commenced on the same date as the bank failed, the statute of limitations expires for these claims on August 21, 1993.

Defendants argue that the six-year limitations period applies only to actions brought by the FDIC, not the FDIC's assignees. Defendants offer no authority for this argument, other than their plain reading of the statute. They do not dispute that had the FDIC brought the action, the six-year limitations period would apply. An assignee stands in the shoes of the assignor, and acquires all of the assignor's rights and liabilities in the assignment. This general principle and a strong public policy require that the FDIC's assignee acquire the six-year limitations period provided by § 1821(d)(14)(A). See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942); Porras v. Petroplex Sav. Ass'n, 903 F.2d 379 (5th Cir.1990); FDIC v. Wood, 758 F.2d 156 (6th Cir.1985); and FDIC v. Newhart, 713 F.Supp. 320 (W.D.Mo.1989), aff'd, 892 F.2d 47 (8th Cir.1989). Thus, defendants' argument that claims against them on the notes are time-barred is without merit.

E. Finally, plaintiff argues that Vimala Agrawal should not be dismissed from liability on one of the mortgages at issue in the third cause of action. Three mortgages were executed and given to the bank as security for note No. 1007734. The mortgage central to defendants' argument is referred to by plaintiff as "Mortgage II," and was executed and delivered to the bank on September 1, 1983. Defendants argue that because Vimala Agrawal did not sign the mortgage, her interest in the property cannot be foreclosed. Plaintiff's response to this argument is not exactly clear. Plaintiff states that the three mortgages were executed to secure the same note, and that Kris Agrawal signed the second mortgage as "a married person."³ Apparently Vimala Agrawal's signature appears on the first and third mortgages, but not the second. The real property description in the mortgages appear to be the same.

Defendants' argument is based on the Oklahoma Statute of Frauds, Okla. stat. tit. 15 § 136, which requires a party's signature to an agreement granting an interest in real property before the party may be held to the agreement.⁴ But Vimala Agrawal's signature does appear on two of the mortgages, both of which, according to the complaint, were executed and recorded after the mortgage which does not bear Vimala's signature. Therefore the Court will not dismiss defendant Vimala Agrawal from the third cause of action, and defendants' motion in this regard is denied.

IV.

All that remains to be addressed is defendan...