Ward v. Resolution Trust Corp.
| Citation | 996 F.2d 99 |
| Decision Date | 22 July 1993 |
| Docket Number | No. 92-2443,92-2443 |
| Parties | Terry S. WARD, Plaintiff-Appellant, v. RESOLUTION TRUST CORPORATION, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Tom F. Coleman, Coleman, Bartlett & Associates, Houston, TX, for plaintiff-appellant.
Craig Stahl, Bracewell & Patterson, Houston, TX, for Patriot American.
Kirk K. VanTine, Timothy S. Durst, and David A. Super, Baker & Botts, Washington, DC, for Resolution Trust Corp. and Albert V. Casey.
P. Matthew Sutko and Jonathan Taylor, Resolution Trust Corp., Washington, DC, for Resolution Trust Corp.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.
In this appeal we review the continued efforts of Plaintiff-Appellant Terry S. Ward to purchase the Katy Plaza Office Building (the "Building") in Houston, Texas, from Defendants-Appellees Resolution Trust Corporation (RTC) which had acquired the Building as a result of the failure of a thrift. Despite Ward's earlier efforts to buy the Building, it had been sold by the RTC to Defendant-Appellee Patriot American Investors, L.P. (PAI). The Building was just one of a number of properties included in a nationwide assemblage conveyed by RTC to PAI in a so-called "portfolio" sale. Ward had sought unsuccessfully to enjoin that transaction to the extent the Building was included among the properties to be sold in globo to PAI. Despite that fait accompli, Ward now seeks rescission of the sale of the Building to PAI; he does not seek monetary damages or other relief.
Concluding that the district court reached the right result in dismissing Ward's action, we affirm. Moreover, given our consideration of the briefs of counsel and their oral arguments, and our review of the record in this case, we would be inclined to affirm the district court without writing an opinion, much less publishing it, but for the need we perceive to disabuse Ward and others "out there" who might be similarly situated and More specifically we are constrained to refute Ward's contentions that the RTC's final orders awarding the sale of the Building to PAI exceeded that agency's statutorily authorized powers and functions, in violation of Congressional restrictions set forth in subsections (3)(C) and (11)(D)(ii) of 12 U.S.C. § 1441a(b). In so positing, Ward insists that neither his initial action for an injunction nor his post-sale action for rescission was barred by the anti-injunction provision of FIRREA. 1 Like the district court before us, however, we find that Ward's theory was conceived in flawed logic and therefore dies aborning.
similarly inclined to instigate and prosecute litigation grounded on the same flawed theories. We refer to Ward's legal conclusion that the RTC's proposed disposition of property may be enjoined, or its actual disposition rescinded, on allegations of inadequate price, inadequate competition, unequal treatment of potential offerors, or failure of the RTC to make a determination that the proposed sale will "maximize" the net present value return on the property in question
The Building was previously owned by a now-failed thrift institution which operated under RTC conservatorship from June 15, 1990, until July 26, 1991, when the RTC-Receiver was appointed to serve as receiver for that institution, thereby succeeding to ownership of the Building. Prior to being placed in conservatorship and later in receivership, the subject thrift had negotiated with a number of prospective purchasers of the Building, including Ward. In December 1990, he submitted a purchase offer, contingent on acquiring some adjacent property. That offer was rejected by the RTC, but Ward and others were subsequently notified that the Building would be re-offered.
In June 1991, Ward again offered to buy the Building and the same adjacent land, but the RTC rejected this offer too. Nevertheless, Ward was invited to submit yet another, higher offer for the seller to consider. Although Ward ultimately did so, it was not until well after the RTC and PAI had contracted for the portfolio sale in question. The contract between the RTC and PAI ("Master Agreement of Sale") contemplated the sale of numerous properties scattered throughout the United States and having an aggregate value between $300 and $500 million. Both the Building and the adjoining land were included among the properties constituting the portfolio assemblage.
The Master Agreement of Sale was the product of extensive negotiations between PAI and the RTC, which began in February 1991. Independent experts were retained to evaluate the economic viability and structure of such a transaction, the qualifications of PAI, and the recommended controls and protections. In May 1991, the Board of Directors of the RTC approved such a portfolio sale in principle. In August 1991, the Master Agreement of Sale was executed by the RTC. That agreement provided for the affected properties to be sold to PAI at 100% of current market value, as determined by expert appraisers. It also provided that the aggregate sales proceeds of all properties (as distinguished from the individual sales proceeds of each separate property) should not be less than the total for which the individual properties could be sold under pre-existing, applicable policies of the RTC. Following initial negotiations, a package of five properties, including the Building, was agreed upon by the RTC and PAI. A closing was tentatively scheduled for June 1992, at an aggregate price of approximately $30 million.
After Ward was unsuccessful in the district court in his attempt to block the RTC's disposition of the Building as part of the subject portfolio sale to PAI, he sought supervisory relief from this court pending appeal. We denied such relief, and the sale of the Building was closed on August 20, 1992. That is the transaction which Ward now seeks to rescind.
Having failed to prevent the RTC from conveying the Building to PAI, Ward now attempts to do indirectly, through rescission, what he was unable to do directly through injunction. For if Ward is to have any hope of getting another crack at becoming the successful bidder and acquiring the Building, he must first succeed in having title to the Building divested from PAI (or its successors if there have been any) and re-vested in the RTC. We therefore examine his entitlement to rescission from the same perspective we would his entitlement to a permanent injunction.
Ward does not--because he cannot--contest the district court's statement that § 1821(j) makes clear that the RTC is "free to perform its functions, which include the liquidation of receivership assets, without being encumbered by the possibility of injunctive actions." The court relied on the earlier quoted language from § 1821(j) to the effect that no court may take any action to restrain or affect the exercise of powers or functions of the RTC whether as conservator or receiver of a failed thrift. As we observed in 281-300 Joint Venture, 5 by virtue of § 1821(j) "[t]he courts lack the ability to enjoin [actions] that are within the statutory powers of the RTC as conservator or receiver." In sustaining the denial of injunction, we there found that, whether acting as conservator or receiver, the RTC 6
The Third Circuit observed, in Gross v. Bell Savings Bank, that the courts are prohibited by § 1821(j) from enjoining the RTC's disposition of receivership or conservatorship assets unless the RTC is "acting clearly outside its statutory powers" under FIRREA. 7 The third Circuit went on to consider the types of RTC actions that might be deemed "clearly outside its statutory powers" and thus subject to injunction, such as adjudicating state law claims or foreclosing on an asset while a bankruptcy stay is in effect. 8 That court noted, and we agree, that In the face of the positions already espoused by this and other circuit courts, and despite the undeniable fact that disposing of assets of the failed thrift when acting as its conservator or receiver is a quintessential statutory power of the RTC, Ward nevertheless insists that injunction (and therefore rescission) is available in the instant case. Specifically, Ward argues that when the RTC purports to dispose of an asset for a viciously low price it frustrates the direct intent of Congress, and is thereby "acting clearly outside of its statutory powers." Ward contends that the sale of the Building to PAI for a net present value that he calculates to be substantially less than his $3.8 million cash offer,...
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