The Colonial BancGroup, Inc. v. Federal Deposit Insurance Corporation

Filing 10

OPINION AND ORDER; With the consent of the Federal Deposit Insurance Corporation and Colonial BancGroup, Inc., it is ORDERED that the withdrawal motions are granted as to miscellaneous action nos. 2:10mc3502-MHT, 2:10mc3503-MHT and 2:10mc3504, and ar e denied as to miscellaneous action no. 2:10mc3505-MHT, as follows: (1) Pursuant to 28 U.S.C. § 157(d), the references to the bankruptcy court with respect to the claim objection (miscellaneous action no. 2:10mc3502-MHT), the fraudulent obligati on action (miscellaneous action no. 2:10mc3503-MHT), and the personal property action (miscellaneous action no. 2:10mc3504-MHT) are withdrawn to this court for all purposes; (2) In accordance with the agreement between the Federal Deposit Insurance C orporation and Colonial BancGroup, the Garland property action (miscellaneous action no. 2:10mc3505-MHT) shall remain pending before the bankruptcy court and, to the extent any issues relating to the Garland property action are currently raised in ei ther the claim objection pleading or in the civil action pending in this Court, styled The Colonial BancGroup, Inc. v. Federal Deposit Insurance Corporation, as Receiver for Colonial Bank, Case 2:10-cv-0198, such issues shall be decided by the bankru ptcy court, as part of the Garland property action; and (3) Briefing with respect to the remaining submissions in the Federal Deposit Insurance Corporations pending motion to dismiss the complaint in the fraudulent obligation action (miscellaneous ac tion no. 2:10mc3503-MHT) shall be as follows: (a) Colonial BancGroup, Inc. shall file any response to the motion to dismiss on or before June 11, 2010; and (b) the Federal Deposit Insurance Corporation shall file any reply in further support of the m otion to dismiss on or before June 25, 2010. The clerks of the bankruptcy court and this court are DIRECTED to take all steps necessary to transfer to the United States District Court for the Middle District of Alabama the bankruptcy proceedings at i ssue in miscellaneous action nos. 2:10mc3502-MHT, 2:10mc3503-MHT, and 2:10mc3504-MHT. The clerk of this court shall set up the transferred cases as separate civil cases, with separate and new civil action numbers. Signed by Honorable Myron H. Thompson on 5/10/2010. (jg, ) Copy sent to Bankruptcy Clerk

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

IN RE: COLONIAL BANCGROUP, INC. Debtor.

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CIVIL ACTION NO. 2:10mc3502-MHT (Bankr. Court No. 09-32303) (WO)

IN RE: COLONIAL BANCGROUP, INC. Debtor. COLONIAL BANCGROUP, INC. Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION Defendant.

CIVIL ACTION NO. 2:10mc3503-MHT (Bankr. Adv. Proc. No. 09-03087)

IN RE: COLONIAL BANCGROUP, INC. Debtor. COLONIAL BANCGROUP, INC. Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION Defendant. IN RE: COLONIAL BANCGROUP, INC. Debtor. COLONIAL BANCGROUP, INC. Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:10mc3504-MHT (Bankr. Adv. Proc. No. 10-03018)

CIVIL ACTION NO. 2:10mc3505-MHT (Bankr. Adv. Proc. No. 10-03019)

OPINION AND ORDER These matters are before the court on the motions of the Federal Deposit Insurance Corporation (FDIC), as receiver for Colonial Bank, to withdraw the references of several pending matters to consolidate proceedings before the district court, which were filed by the FDIC on March 31, 2010, in the United States Bankruptcy Court for the Middle District of Alabama, in connection with the

Chapter 11 bankruptcy case of Colonial BancGroup, Inc. The proceedings were transferred to this court by the clerk of the bankruptcy court on April 1, 2010. Pursuant to the withdrawal motions, the FDIC sought to remove from the bankruptcy court the following

matters: (a) miscellaneous action no. 2:10mc3502-MHT: Colonial BancGroup's objection to the FDIC's proof of claim in Colonial BancGroup's Chapter 11 case (claim objection);

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(b)

miscellaneous

action

no.

2:10mc3503-MHT:

an

adversary proceeding, styled The Colonial BancGroup, Inc. v. F.D.I.C., Adv. Proc. No. 09-03087 (DHW), in which Colonial BancGroup asserts that if, as alleged by the FDIC, Colonial BancGroup made any "commitment to maintain the capital" of Colonial Bank within the meaning of § 365(o) of the Bankruptcy Code, any such

commitment should be avoided as a fraudulent obligation (fraudulent obligation action); (c) second miscellaneous adversary action no. 2:10mc3504-MHT: The a

proceeding,

styled

Colonial

BancGroup, Inc. v. F.D.I.C., Adv. Proc. No. 10-03018 (DHW), which seeks a declaratory judgment from the

bankruptcy court that Colonial BancGroup is the owner of certain tax refund claims, insurance refund claims, and other personal property (personal property action); and (d) miscellaneous action no. 2:10mc3505-MHT: a third adversary proceeding, styled The Colonial BancGroup, Inc. v. F.D.I.C., Adv. Proc. No. 10-03019 (DHW), which seeks

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a declaratory judgment concerning certain real property located in Orlando, Florida, referred to as the Garland Road Property (Garland property action). As a result of discussions between the FDIC and Colonial BancGroup subsequent to the filing of the

withdrawal motions, Colonial BancGroup filed a response on April 23, 2010, in which it consented to this court's withdrawal of the references with respect to the claim objection, the fraudulent obligation action, and the personal property action. The parties have agreed that

the Garland property action shall not be withdrawn and should remain pending before the bankruptcy court.

*** With the consent of the Federal Deposit Insurance Corporation and Colonial BancGroup, Inc., it is ORDERED that the withdrawal motions are granted as to

miscellaneous action nos. 2:10mc3502-MHT, 2:10mc3503-MHT,

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and 2:10mc3504-MHT and are denied as to miscellaneous action no. 2:10mc3505-MHT, as follows: (1) to the Pursuant to 28 U.S.C. § 157(d), the references bankruptcy court with respect to the claim

objection (miscellaneous action no. 2:10mc3502-MHT), the fraudulent obligation action (miscellaneous action no. 2:10mc3503-MHT), and the personal property action

(miscellaneous action no. 2:10mc3504-MHT) are withdrawn to this court for all purposes; (2) Federal In accordance with the agreement between the Deposit Insurance Corporation and Colonial

BancGroup, the Garland property action (miscellaneous action no. 2:10mc3505-MHT)shall remain pending before the bankruptcy court and, to the extent any issues relating to the Garland property action are currently raised in either the claim objection pleading or in the civil action pending in this Court, styled The Colonial

BancGroup, Inc. v. Federal Deposit Insurance Corporation, as Receiver for Colonial Bank, Case 2:10-cv-0198, such

6

issues shall be decided by the bankruptcy court, as part of the Garland property action; and (3) submissions Briefing in with respect Federal to the remaining Insurance

the

Deposit

Corporation's pending motion to dismiss the complaint in the fraudulent obligation action (miscellaneous action no. 2:10mc3503-MHT) shall be as follows: (a) Colonial BancGroup, Inc. shall file any response to the motion to dismiss on or before June 11, 2010; and (b) the Federal Deposit Insurance Corporation shall file any reply in further support of the motion to dismiss on or before June 25, 2010. The clerks of the bankruptcy court and this court are DIRECTED to take all steps necessary to transfer to the United States District Court for the Middle District of Alabama the bankruptcy proceedings at issue in

miscellaneous action nos. 2:10mc3502-MHT, 2:10mc3503-MHT, and 2:10mc3504-MHT. The clerk of this court shall set up

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the

transferred

cases

as

separate

civil

cases,

with

separate and new civil action numbers. DONE, this the 10th day of May, 2010. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE