Resolution Trust Corp. v. Mustang Partners, No. 90-6276

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before LOGAN, MOORE and BALDOCK; PER CURIAM
• Citation: 946 F.2d 103
• Parties: RESOLUTION TRUST CORPORATION, in its capacity as Conservator for Savers Savings Association, Plaintiff-Appellee, v. MUSTANG PARTNERS, a Missouri Limited Partnership, Defendant-Appellant, v. RESOLUTION TRUST CORPORATION, in its capacity as Receiver for Savers Federal Savings and Loan Association, Third-Party-Defendant-Appellee.
• Docket Number: No. 90-6276
• Decision Date: 06 August 1991

Page 103

946 F.2d 103 RESOLUTION TRUST CORPORATION, in its capacity as Conservator
for Savers Savings Association, Plaintiff-Appellee,
v.
MUSTANG PARTNERS, a Missouri Limited Partnership, Defendant-Appellant,
v.
RESOLUTION TRUST CORPORATION, in its capacity as Receiver
for Savers Federal Savings and Loan Association,
Third-Party-Defendant-Appellee. No. 90-6276. United States Court of Appeals,
Tenth Circuit. Aug. 6, 1991.
Publication Ordered Sept. 26, 1991.

Ricki V. Sonders of Edwards, Sonders & Propester, Oklahoma City, Okl., for plaintiff-appellee Resolution Trust Corp. as Conservator for Savers Sav. Ass'n.

T.P. Howell, IV of Edwards, Sonders & Propester, Oklahoma City, Okl., for third-party-defendant-appellee Resolution Trust Corp. as Receiver for Savers Federal Sav. and Loan Ass'n.

Kelley L. Cornelius, Oklahoma City, Okl., for defendant-appellant.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Mustang Partners (Mustang) appeals the district court's order of July 27, 1990, in favor of the plaintiff Resolution Trust Corporation (RTC-conservator), in its capacity as conservator for Savers Savings

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Association (SSA), allowing RTC-conservator to have and recover judgment on certain promissory notes and to foreclose certain mortgages. Mustang also appeals the district court's order of July 17, 1990, granting summary judgment to counterclaim defendant Resolution Trust Corporation (RTC-receiver), in its capacity as receiver for Savers Federal Savings and Loan Association (Savers) and against Mustang on Mustang's counterclaims. On appeal, Mustang specifically asserts: (1) The district court abused its discretion in finding that Mustang was in default under the terms of the promissory notes, and (2) Mustang should be allowed to assert its counterclaims against RTC-receiver. ¹ We affirm.

In December 1985, Mustang executed and delivered two loan agreements, three promissory notes, and two leasehold mortgages to Savers. The notes, one in the amount of $4,175,000.00 (note # 1), one in the amount of $508,218.56 (note # 2), and one in the amount of $200,000.00 (note # 3), were secured by leasehold mortgages on Mustang's interest in an apartment complex. On August 29, 1988, Savers filed suit in Oklahoma state court to obtain a judgment on the notes and to foreclose on the leasehold mortgages. Subsequent to filing suit, on February 10, 1989, Savers was placed in the conservatorship of the Federal Savings and Loan Insurance Corporation (FSLIC). On March 10, 1989, FSLIC removed the state court action to the United States District Court for the Western District of Oklahoma.

On October 5, 1989, Savers' conservatorship was replaced with a receivership and plaintiff Resolution Trust Corporation was named as receiver. The Office of Thrift Supervision (OTS) immediately chartered Savers Savings Association appointing RTC as conservator of the new entity. On October 16, 1989, the district court substituted RTC-conservator as the plaintiff, and RTC-receiver as the counterclaim defendant in this action.

I.

Mustang first contends that the district court erred in concluding that Mustang was in default under the terms of note # 1. The interpretation of the construction of a written instrument is a question of law which we review de novo. See Caven v. American Fed. Sav. & Loan Ass'n of Colo., 837 F.2d 427, 430 (10th Cir.1988). "The language in a contract is given its plain and ordinary meaning...." United Bank & Trust Co. v. Kansas Bankers Sur. Co., 901 F.2d 1520, 1522 (10th Cir.1990).

Under the terms of the loan agreement, in the event of default, Mustang was allowed ten days (plus three days for mailing) following written notice in which to cure the default. In the event the default was not cured within the allotted time, Savers could accelerate the entire balance and foreclose all security interests. Payments on note # 1 were to commence January 1, 1986, and consist of interest only payments until January 1, 1991, when payments of principal and interest would commence. The first twenty-four payments were to be in the amount of $34,356.70 per month. Mustang was to pay $17,395.77 of this amount with the balance paid as a draw from loan # 2. Commencing on January 1, 1988, Mustang was to pay $26,093.68, of the $34,356.70, per month with the balance to be paid as a draw from loan # 2.

On February 4, 1988, Savers mailed Mustang notice of default on note # 1, demanding curative payment in the amount of $139,827.93 for the months of November and December 1987, and January and February 1988. On February 13, 1988,...