Office of Thrift Supervision v. Paul

• Decision Date: 28 October 1997
• Docket Number: No. 96-1315-CIV-UNGARO.,96-1315-CIV-UNGARO.
• Citation: 985 F.Supp. 1465
• Parties: OFFICE OF THRIFT SUPERVISION, U.S. Department of the Treasury, Plaintiffs, v. David L. PAUL, Defendant.
• Court: U.S. District Court — Southern District of Florida

985 F.Supp. 1465

OFFICE OF THRIFT SUPERVISION, U.S. Department of the Treasury, Plaintiffs, v. David L. PAUL, Defendant.

No. 96-1315-CIV-UNGARO.

United States District Court, S.D. Florida.

October 28, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mary F. Dooley, U.S. Atty's Office, Miami, FL, for U.S. Dept. of Treasury.

David L. Paul, pro se.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

UNGARO-BENAGES, District Judge.

THIS CAUSE is before the Court upon the parties' cross motions for summary judgment. Plaintiff("OTS") filed its Renewed Motion for Summary Judgment (DE-27) on February 18, 1997, to which Defendant ("Paul") filed no response. Paul filed his Motion for Summary Disposition (DE—24) on February 21, 1997, to which the OTS filed an opposition memorandum on March 6, 1997 (DE—30).

THE COURT has considered the motions, read the pertinent portions of the record, and being otherwise fully advised in the premises, the OTS's Motion is granted, and Paul's Motion is denied.

I. FACTS

A. Background

The OTS is a federal bank regulatory agency that has the statutory power to issue orders against institution-affiliated parties of savings associations pursuant to provisions of the Home Owners' Loan Act and the Federal Deposit Insurance Act. See 12 U.S.C. §§ 1461 et seq., 1813, 1818. (Complaint ¶ 4). On August 29, 1991, the OTS served a written Notice of Assessment to David Paul, who had been the Chief Executive Officer and Chairman of CenTrust Bank, an OTS-regulated State Savings Bank, (Complaint ¶ 5, Answer ¶ 6), relating to the OTS's pending administrative civil money penalty proceeding. (Complaint ¶ 10, Answer ¶ 12.b).¹ The OTS charged Paul with violating its Temporary Order to Cease and Desist, for which the OTS sought $3,172,500 in civil money penalties. (Complaint ¶ 11; OTS Mot. at 3).

An administrative law judge conducted a hearing and recommended that the OTS issue a final order assessing civil money penalties against Paul. (Complaint ¶ 11; OTS Mot at 3; Paul Mot. at 3). The OTS Acting-Director did so on December 15, 1993. See OTS Order No. AP 93-104, 1993 OTS DD LEXIS 132. The Order ("Final CMP Order") assessed civil penalties against Paul in the amount of $841,748.25. The OTS served the Final CMP Order on Paul on December 15, 1993, directing Paul to make payment to the OTS's Controller's Division within sixty days of service. See Final CMP Order at 83, ¶ 16. The Final CMP Order became effective immediately and gave Paul until February 13, 1994 to make payment. Id. at 86.

The Final CMP Order (at ¶ 23) gave Paul notice of his right to appeal the Order to the U.S. Court of Appeals within thirty days pursuant to 12 U.S.C. § 1818(h). It is undisputed that Paul did not commence an appeal, nor did any court stay, modify, or set aside the Final CMP Order, nor has Paul made any payment to the OTS as a result of the Order. (OTS Mot. at 4; Answer ¶ 19; OTS Exh. 3 ¶ 4).

B. Procedural Status

The OTS filed its Complaint in this matter on May 16, 1996. The Complaint requested that this Court enforce the Final CMP Order by entering final judgment in the amount of $841,748.25 pursuant to 12 U.S.C. § 1818, post-judgment interest and costs pursuant to 28 U.S.C. § 1961, and a ten percent surcharge to cover the cost of the OTS's collection pursuant to 28 U.S.C. § 3011. (OTS Order No. AP 93-104; Complaint at 8-9). The OTS filed its first Motion for Summary Judgment with its Motion for Default Judgment on October 8, 1996. After a court-ordered enlargement of time, Paul, who is proceeding pro se in this matter, filed his Answer on December 2, 1996, which mooted the OTS's pending motions.

Paul's Answer asserted ten affirmative defenses: six challenged the appropriateness or validity of the Final CMP Order;² laches (Aff. Def 4); statute of limitations (Aff.Def.5); failure to state a claim upon which relief can be granted; and lack of standing. As explained in § III.C.3 below, these affirmative defenses, except possibly Paul's argument that the Final CMP Order is void ab initio due to the alleged lack of authority for the OTS Deputy Director to issue the Order, have either been abandoned by Paul or are procedurally barred.

In any event, on October 29, 1996, this Court entered its Order allowing Plaintiff to renew its Motion for Summary Judgment, which the OTS did on February 18, 1997. The OTS's primary argument is that the applicable statutes mandate entry of summary judgment in its favor and preclude the district court from considering Paul's affirmative defenses. These arguments are addressed in § III.A, infra. Although Paul never responded to the OTS's motion, he did file his own motion on February 21, 1997, in which he persists in his contention that the Final CMP Order is jurisdictionally defective because it was issued by a person without authority to do so. Additionally, Paul argues that venue is improper in this Court, and essentially that this action is barred by the six year statute of limitations contained in § 1818. The OTS responded on March 6, 1997. The Court has considered these filings, along with their exhibits and attachments, in resolving the cross-motions for summary judgment.

II. SUMMARY JUDGMENT STANDARD

The procedure for disposition of a summary judgment motion is well established. Summary judgment is authorized only when:

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56 (emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). The party moving for summary judgment has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In applying this standard, the Adickes Court explained that, when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608.

The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings. After the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

If the record presents factual issues which are material to the outcome of the case, the Court must not decide them; it must deny the motion and proceed to trial. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic material facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed material facts, then the Court should deny summary judgment, as a genuine dispute exists. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[T]he dispute about a material fact is `genuine,' ... if the evidence is such that a reasonable jury could return a verdict for the non-moving party").

These principles are equally applicable when, as in this case, the plaintiff is seeking entry of summary judgment and the defendant has asserted affirmative defenses. On a plaintiff's motion for summary judgment, the defendant bears the initial burden of showing that the affirmative defense is applicable. Blue Cross and Blue Shield v. Weitz, 913 F.2d 1544, 1552 (11th Cir.1990) (affirming district court's summary judgment order as to plaintiff). Only upon such a showing does the burden shift to plaintiff regarding that affirmative defense. Id. at note 13. The reason is that the defendant bears the burden of proof on his affirmative defenses at trial. See Thorsteinsson v. M/V Drangur, 891 F.2d 1547, 1550-51 (11th Cir.1990) (citations omitted).

Thus, summary judgment is appropriate where the defendant fails to come forward with evidence sufficient to dispute an element of the plaintiff's case or to support an affirmative defense. Riberglass, Inc. v. Techni-Glass Indus., Inc., 804 F.2d 1577, 1580 (11th Cir.1986) (affirming summary judgment in favor of plaintiff), reh'g granted and rev'd on other grounds, 811 F.2d 565 (11th Cir.1987) (district court wrongly considered certain evidence). In fact, the Riberglass court interpreted the Supreme Court's view as "mak[ing] clear that once a properly supported motion for summary judgment has been made it is not incumbent upon the movant to produce evidence negating the existence of a genuine issue of fact as to issues or elements that the nonmovant must prove at trial." Id. (interpreting Celotex, 477 U.S. at 322, 106 S.Ct. at 2553).

III. LEGAL ANALYSIS

A. The OTS's Motion for Summary Judgment

The OTS argues that this Court should reject Paul's affirmative defenses and enter final summary judgment enforcing the Final CMP Order. The Court agrees with the OTS that it has jurisdiction to enforce the Final CMP Order pursuant to 12 U.S.C. § 1818(i)(1), which provides:

The appropriate Federal banking agency may in its discretion apply to the United States...