Resolution Trust Corp. v. Fragetti
| Citation | 49 F.3d 715 |
| Decision Date | 11 April 1995 |
| Docket Number | 94-4038 and 94-4039,N,93-4622,94-4037,94-4030,Nos. 93-3303,s. 93-3303 |
| Parties | RESOLUTION TRUST CORPORATION, as Conservator of Carteret Federal Savings Bank, F.A., Plaintiff-Counterclaim-Defendant-Appellant, v. Thomas FRAGETTI; Diane Fragetti, Defendants-Counterclaim-Plaintiffs-Appellees, John Doe; Jane Doe, Defendants. RESOLUTION TRUST CORPORATION, as Conservator of Carteret Savings Bank, F.A. and as Receiver of Carteret Savings Bank, F.A., Plaintiff-Appellant, v. Joseph MACCHITELLI, husband, Francine Macchitelli, wife, Defendants-Appellees. RESOLUTION TRUST CORPORATION, in its capacity as Conservator of Carteret Federal Savings Bank, F.A. and its capacity as Receiver of Carteret Savings Bank, F.A., Plaintiff-Appellant, v. Kazuyuki KAMEDA, Taneko Kameda, Evergreen at Port St. Lucie Condominium Association, Inc., a Florida Corporation, John Doe and Jane Doe, his wife or her husband, if she or he are married, Defendants-Appellees. RESOLUTION TRUST CORPORATION, in its capacity as Conservator of Carteret Federal Savings Bank, F.A. and in its capacity as Receiver of Carteret Savings Bank, F.A., Plaintiff-Appellant, v. Milagros B. ADARNA, Defendant-Appellee, John Doe and Jane Doe, his wife or her husband, if she or he are married, Defendants. RESOLUTION TRUST CORPORATION, in its capacity as Conservator of Carteret Federal Savings Bank, F.A. and in its capacity as Receiver of Carteret Savings Bank, F.A., Plaintiff-Appellant, v. Vince MALORNI; Ruth Malorni; Evergreen at Port St. Lucie Condominium Association, Inc., a Florida Corporation, Defendants-Appellees. RESOLUTION TRUST CORPORATION, in its capacity as Conservator of Carteret Federal Savings Bank, F.A. and in its capacity as Receiver of Carteret Savings Bank, F.A., Plaintiff-Appellant, v. Bertie LOWE, Millicent Lowe, Defendants-Appellees. on-Argument Calendars. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Raoul G. Cantero, III, Miami, FL, for appellant in No. 93-3303.
Reginald J. Clyne, Mitchell Williams & Clyne, P.A., Coral Gables, FL, for appellant in No. 93-4622.
Raoul G. Cantero, III, David Lawrence, III, Adorno & Zeder, P.A., Miami, FL, for appellant in Nos. 94-4030, 94-4037, 94-4038 and 94-4039.
Steven M. Greenberg, South Miami, FL, for appellees in Nos. 93-3303, 94-4037, 94-4038 and 94-4039.
Douglas S. Lyons, Lyons and Farrar, P.A., Coral Gables, FL, for appellees in No. 94-4030.
Appeal from the United States District Court for the Middle District of Florida.
Appeals from the United States District Court for the Southern District of Florida.
Before BIRCH, BLACK and CARNES, Circuit Judges.
This is a consolidated appeal from district court orders remanding these six cases back to state court. The issue in each case is whether the district courts' decisions that the removal in each case had been untimely are erroneous in light of a 1991 amendment to the removal provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. 12 U.S.C.A. Sec. 1441a(l )(3)(B) (Supp.1994). We hold that these decisions are erroneous, and therefore reverse.
In 1992, Carteret Savings Bank, F.A. ("Carteret") filed mortgage foreclosure suits in state court against each of the appellees in all six of these cases. In December of 1992, the Office of Thrift Supervision ordered Carteret closed and appointed the Resolution Trust Corporation ("RTC") as receiver. Carteret Federal Savings Bank ("Carteret Federal") was chartered shortly thereafter, and appellees' mortgages were transferred to the new institution. The RTC was then appointed conservator of Carteret Federal.
The RTC filed a notice of substitution and a simultaneous notice of removal in each case. 1 The RTC attached to all notices a copy of the orders appointing it as receiver of Carteret, and as conservator of Carteret Federal. The district courts ordered the cases remanded back to state court. In reaching their decisions, the district courts deemed the RTC to have been substituted on the date it was appointed receiver of Carteret--December 4, 1992. Since the notices of removal had all been filed more than ninety days after that date, the district courts concluded that the notices were untimely. 12 U.S.C.A. Sec. 1441a(l )(3)(A)(i) (Supp.1994).
The RTC argues that the district courts erred in holding that the date the RTC was actually appointed receiver was the date of substitution for purposes of Sec. 1441a(l )(3)(A)(i). Instead, the RTC contends that the court should have found that the date of substitution was the date the RTC filed with the state courts its notices of substitution, which included a copy of the order of RTC's appointment as receiver. We agree.
We review conclusions of law de novo. Barnett Bank of Marion County, N.A. v. Gallagher, 43 F.3d 631, 634 (11th Cir.1995).
The removal statute at issue in these cases, 12 U.S.C.A. Sec. 1441a(l )(3)(A)(i) (Supp.1994), provides that the RTC may remove any action from state court to federal court "not later than 90 days after the date the [RTC] is substituted as a party." In addition, the statute provides that the RTC shall be deemed substituted "upon the filing of a copy of the order appointing the [RTC] as conservator or receiver for that party or the filing of such other pleading informing the court that the [RTC] has been appointed conservator or receiver for such party." 12 U.S.C.A. Sec. 1441a(l )(3)(B) (Supp.1994). That definition of "substituted" was added to the statute in a 1991 amendment, which became effective on February 1, 1992. Prior to that time, the statute contained no definition of the term. Because each of the cases in this consolidated appeal was initially filed after the effective date of the amendment, the amendment is applicable here.
Courts must give effect to the clear meaning of statutes as written. See Estate of Cowart v. Nicklos Drilling Co., --- U.S. ----, ----, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992); see also Sullivan v. Stroop, 496 U.S. 478, 482, 110 S.Ct. 2499, 2502-03, 110 L.Ed.2d 438 (1990); United States v. McLymont, 45 F.3d 400, 401 (11th Cir.1995) (). "Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982) (citation and internal quotation marks omitted).
We find that the 1991 amendment is clear and unambiguous about when substitution is deemed to have occurred. In the amendment, Congress specified in plain English that the removal period begins when a document is filed that tells the state court that the RTC has been appointed as receiver or conservator. In these cases, the RTC attached the orders of appointment as receiver for Carteret and as conservator for Carteret Federal to each of its notices of substitution. The RTC then filed notices of removal in each case the same day that it filed those orders of appointment with the state court. Therefore, under the statute's unambiguous language, removal was timely in each case. Indeed, it could not have been more timely.
Prior to the amendment adding the definition of "substituted," many district courts had interpreted the statute to mean that the RTC was substituted on the date it was appointed conservator or receiver for the institution involved, regardless of when the state court was formally notified of that appointment. E.g., Resolution Trust Corp. v. Eugenio, 790 F.Supp. 686, 690 (N.D.Tex.1991); Santiago v. Resolution Trust Corp., 779 F.Supp. 632, 635 (D.P.R.1991); Towns Real Estate and Appraisal Serv., Inc. v. Resolution Trust Corp., 753 F.Supp. 914, 916 (N.D.Ala.1991). The district courts in the cases now before us relied upon that outdated, pre-amendment case law in reaching their decisions, and the appellees largely rely on it in their briefs.
One of the policy concerns expressed in the pre-amendment decisions, and echoed in the arguments of appellees here, is that if the time for removal does not begin running until the date the state court is formally notified of substitution, the RTC will have unfettered control over the removal process because it can control the timing of substitution. We doubt that, because a close reading of the statute reveals that any party may file a notice in the state court that the RTC has been appointed; the statute does not require that the notice of substitution be filed by the RTC. 12 U.S.C.A. Sec. 1441a(l )(3)(B) (Supp.1994). Thus, any party may trigger the running of the removal period by filing a pleading with the state court notifying it of RTC's appointment as receiver or conservator. See, e.g., Spring Garden Assoc., L.P. v. Resolution Trust Corp., 26 F.3d 412, 417 (3d Cir.1994).
Even assuming, however, that that concern were valid, policy concerns are primarily the province of Congress, not the courts. While courts sometimes consider policy when deciding what Congress meant in a statute, courts may not use policy concerns to circumvent Congress's clearly expressed intent. Once Congress has spoken to a policy issue, that is it, as far as courts are concerned. See, e.g., Mertens v....
To continue reading
Request your trial
-
DISTRICT 65 v. Prudential Securities
...If Congress's intent is clear, then the Court may not use its policy concerns to circumvent that purpose. Resolution Trust Corp. v. Fragetti, 49 F.3d 715, 718 (11th Cir.1995) ("Once Congress has spoken to a policy issue, that is it, as far as courts are concerned."). Moreover, "where Congre......
-
Poore v. American-Amicable Life Ins. Co. of Texas
... ... Ocala Star Banner, 99 F.3d 1068, 1075 (11th Cir.1996); Resolution Trust Corp. v. Fragetti, 49 F.3d 715, 717 (11th Cir.1995). It is only ... ...
-
Fed. Deposit Ins. Corp. v. N. Savannah Props., LLC
...the RTC's right to remove was triggered in relevant part by its substitution as a party in the state court action. See RTC v. Fragetti, 49 F.3d 715, 717–18 (11th Cir.1995) (citing 12 U.S.C. § 1441a( l )(3)(A)(i) (repealed)). In 1991, Congress amended § 1441a to define the phrase “substitute......
-
Castleberry v. Goldome Credit Corp.
...removable when filed in January 1995. Alternatively, they cite Lazuka v. FDIC, 931 F.2d 1530, 1537 (11th Cir.1991) and RTC v. Fragetti, 49 F.3d 715, 717 (11th Cir.1995) for the proposition that the case was removable when Goldome referenced FDIC-Receiver in its February 1995 Answer.9 Under ......