Resolution Trust Corp. v. Heiserman
| Citation | 839 F. Supp. 1457 |
| Decision Date | 01 November 1993 |
| Docket Number | Civ. A. No. 93-B-944. |
| Court | U.S. District Court — District of Colorado |
| Parties | RESOLUTION TRUST CORPORATION, a corporate instrumentality of the United States of America, Plaintiff, v. Richard D. HEISERMAN, individually and as a general and limited partner in Heiserman Family Partners, Ltd., and as a grantor, trustee and beneficiary of Heiserman Family Trust; Walter C. Kane, Guy E. Boyer, David G. Marberry, John C. Root, Charles R. Babb, James D. Grow, John B. Howell, Chester A. Latcham, Jr., individually and as a general and limited partner in Latcham Family Partners, Limited, and as a grantor, trustee and beneficiary of Latcham Family Trust; William T. McCallum, individually, and as a general and limited partner in McCallum Family Partners, Ltd., and as a grantor, trustee and beneficiary of McCallum Family Trust; James C. Shearon, individually and as a general and limited partner in JCS Family Partners, Ltd., and as a grantor, trustee and beneficiary of JCS Family Trust; Heiserman Family Partners, Ltd., a limited partnership; Patricia A. Heiserman, as a general partner and limited partner in Heiserman Family Partners, Ltd.; John Does One and Two, as other unknown general and limited partners of Heiserman Family Partners, Ltd.; Heiserman Family Trust; Richard L. Smith, as a trustee of Heiserman Family Trust; John Does Three and Four, as other unknown trustees and beneficiaries of Heiserman Family Trust; Latcham Family Partners, Limited, a limited partnership; John Does Five and Six, as other unknown general and limited partners of Latcham Family Partners, Limited; Latcham Family Trust; John Does Seven and Eight, as other unknown trustees and beneficiaries of Latcham Family Trust; McCallum Family Partners, Ltd., a limited partnership; Leslie A. McCallum, as a general partner and limited partner in McCallum Family Partners, Ltd.; John Does Nine and Ten, as other unknown general and limited partners of McCallum Family Partners, Ltd.; McCallum Family Trust; John D. Clayton and Alan D. MacLennan, as trustees of McCallum Family Trust; John Does Eleven and Twelve, as other unknown trustees and beneficiaries of McCallum Family Trust; JCS Family Partners, Ltd., a limited partnership; Carol M. Shearon, as a general partner and limited partner in JCS Family Partners, Ltd.; John Does Thirteen and Fourteen, as other unknown general and limited partners of JCS Family Partners, Ltd.; JCS Family Trust; John Does Fifteen and Sixteen, as other unknown trustees and beneficiaries of JCS Family Trust; Engel & Rudman, P.C., a Colorado professional corporation; Barry S. Engel, personally and as a shareholder in Engel & Rudman, P.C.; Ronald L. Rudman, personally and as a shareholder in Engel & Rudman, P.C.; John Does Seventeen and Eighteen, as other unknown shareholders in Engel & Rudman, P.C.; Carolyn P. Boyer; and Nancy A. Marberry, Defendants. |
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Kobayashi & Associates, P.C., John M. Kobayashi, Kathleen M. Kulasza and Linda J. Creagan, Denver, CO, for plaintiff Resolution Trust Corp.
Vinton, Waller, Slivka & Panasci, Kevin D. Allen, Margaret M. McClellan, Denver, CO, for defendants Richard D. Heiserman, Patricia A. Heiserman, Richard L. Smith, Heiserman Family Partners, Ltd. and the Heiserman Family Trust.
Bradley, Campbell, Carney & Madsen, Victor F. Boog, Thomas A. Nolan, Golden, CO, for defendant Walter C. Kane.
Bostrom & Sands, P.C., Jon F. Sands, Thomas DeVine, Denver, CO, for defendants Guy E. Boyer and Carolyn P. Boyer.
Defendants David G. Marberry and Nancy A. Marberry, pro se.
Roos, Cohen & Long, P.C., Alvin M. Cohen, Denver, CO, for defendant John C. Root.
Brega and Winters, P.C., Charles F. Brega, Wesley B. Howard, Carla Minckley, Denver, CO, for defendant Charles R. Babb.
Berryhill, Cage & North, P.C., James R. Cage, Denver, CO, for defendant James D. Grow.
Rothgerber, Appel, Powers & Johnson, Alan W. Anderson, Denver, CO, for defendant John B. Howell.
Ireland, Stapleton, Pryor & Pascoe, P.C., William J. Leone, Denver, CO, for defendants Chester A. Latcham, Jr., Latcham Family Partners Limited, and Latcham Family Trust.
Williams, Youle & Koenigs, P.C., Michael A. Williams, Amy L. Benson, Denver, CO, for defendants William T. McCallum, individually and as a general and limited partner of McCallum Family Partners, Ltd., and as grantor, trustee and beneficiary of the McCallum Family Trust, Leslie A. McCallum, as a general partner and limited partner in McCallum Family Partners, Ltd., McCallum Family Partners, Ltd., McCallum Family Trust, and John D. Clayton and Alan D. MacLennan as trustees of McCallum Family Trust.
Defendant James C. Shearon, pro se.
Robinson, Waters, O'Dorisio and Rapson, P.C., Stephen L. Waters, Denver, CO, for defendants James C. Shearon, in his alleged capacity as a general and limited partner in JCS Family Partners, Ltd., and as a Grantor, Trustee and Beneficiary of JCS Family Trust, and not individually; Carol M. Shearon, as a general and limited partner of JCS Family Partners, Ltd.; JCS Family Partners, Ltd., a limited partnership; JCS Family Trust; and John Does 13, 14, 15 and 16.
Bader & Villanueva, P.C., Jeffrey M. Villanueva, Steven Feder, Denver, CO, for defendants Engel & Rudman, P.C., Barry S. Engel, and Ronald L. Rudman.
The Resolution Trust Corporation (RTC), in its corporate capacity, brings this action against former directors and officers (D & O defendants) of Capitol Federal Savings and Loan Association of Denver (Capitol Federal), a failed federally insured thrift. RTC alleges negligence, negligence per se, gross, willful and wanton negligence, and breach of fiduciary duty of care by the D & O defendants in connection with Capitol Federal's issuance and management of loans resulting in the thrift's insolvency and failure. RTC also asserts claims against certain D & O defendants and their assigns for breach of the fiduciary duty of loyalty alleging diversion of Capitol Federal funds to pay personal legal fees to establish limited partnerships and trusts to shelter their personal assets from creditors when Capitol Federal's failure was imminent. RTC seeks to set aside these transfers or recover their value. Finally, RTC seeks to recover legal fees from the law firm of Engel & Rudman, P.C. and certain of its attorneys (collectively Engel & Rudman) together with other damages caused by the alleged fraudulent transfers. RTC does not allege that Engel & Rudman in any way contributed to Capitol Federal's insolvency or failure. The claims, then, can be viewed broadly in terms of the D & O defendants' liability for errors and omissions and fraudulent transfers.
This action is under the laws of the United States, specifically including 12 U.S.C. § 1441a(b) and 12 U.S.C. § 1821(k). Jurisdiction is pursuant to 12 U.S.C. § 1441a(l)(1) and 28 U.S.C. §§ 1331 and 1345. This court also has pendant jurisdiction over the state law claims.
Before May 4, 1990, Capitol Federal was regulated by the Federal Home Loan Bank Board (FHLBB) and then by its successor the Office of Thrift Supervision (OTS). On May 4, 1990, OTS declared Capitol Federal insolvent and appointed RTC as its conservator. OTS appointed RTC as receiver for Capitol Federal on June 15, 1990 to liquidate and wind up its affairs. As receiver, RTC succeeded to all assets, rights, titles, powers, and privileges of Capitol Federal and its shareholders, members, account holders, depositors, officers and directors. Also on June 15, 1990, a new federal savings association, Capitol Federal Savings and Loan Association was chartered and the RTC was appointed its conservator. New Capitol was dissolved on July 12, 1991 when select assets and deposits were transferred to the Central Bank of Denver through a purchase and assumption agreement. All other assets of Capitol Federal and of New Capitol, including all claims against the officers, directors, and attorneys of Capitol Federal, were later sold to RTC in its corporate capacity pursuant to 12 U.S.C. § 1441a(b)(4) and 12 U.S.C. § 1821(d)(2)(A).
The D & O defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss RTC's claims for negligence, negligence per se, and breach of fiduciary duty. RTC moves pursuant to Fed.R.Civ.P. 12(f) to strike the D & O defendant's affirmative defenses of estoppel, waiver, contributory and comparative negligence, laches, assumption of risk, ratification, consent, acquiescence, failure to mitigate damages, lack of causation, unclean hands, intervening and superseding causes and reliance to the extent the conduct of the RTC or other federal regulatory agencies is implicated in these defenses. RTC likewise moves to strike Engel & Rudman's affirmative defenses of estoppel, waiver, laches, and failure to mitigate damages. Finally, RTC seeks to strike certain D & O defendants' indemnification defenses and certain statute of limitations defenses of defendants.
The motions are now fully briefed and argument was heard on October 22, 1993. For the reasons stated below, I will deny the D & O defendants' motions to dismiss and grant RTC's motions to strike.
For the purposes of a Rule 12(b)(6) motion to dismiss, I accept all factual allegations as true and resolve all reasonable inferences in favor of the plaintiff. Tri-Crown, Inc. v. American Federally Sav. & Loan Ass'n, 908 F.2d 578, 582 (10th Cir.1990). Dismissal is proper only when it appears beyond doubt that no set of facts will support a plaintiff's right to relief. Gregory v. U.S./ U.S. Bankruptcy Court for Dist. of Colorado, 942 F.2d 1498, 1500 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2276, 119 L.Ed.2d 202 (1992).
The Financial Institutions Reform Recovery and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821(k), establishes a national uniform minimum standard of gross negligence for management of a financial institution and also contains a savings...
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