Stearns Bank, National Association v. Berg et al
Filing
58
ORDER granting 38 Motion for summary judgment. Signed by Judge James D. Whittemore on 3/18/2014. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEARNS BANK, NATIONAL ASSOCIATION,
Plaintiff,
v.
Case No.: 8:13-cv-01117-T-27MAP
SKIP BERG et al.,
Defendants.
ORDER
BEFORE THE COURT is Plaintiffs Motion for Summary Judgment of Foreclosure and
Related Relief (Dkt. 3 8). Defendants Skip Berg, both individually and in his capacity as Trustee of
the Skip Berg Revocable Living Trust, and Eighteen :Se_¥~ty-Two South Trail, Inc. responded in
opposition (Dkt. 42), and Plaintiff replied in support of the motion (Dkt. 38). Upon consideration,
the motion (Dkt. 38) is GRANTED.
Introduction
In October 2000, Defendant Skip Berg executed a promissory note in the amount of
$100,000.00 in favor of Community National Bank of Sarasota County. The note was renewed
annually through 2008. In 2009, Community National failed and the Federal Deposit Insurance
Corporation was appointed as Receiver for the failed institution. Later that year, Plaintiff Stearns
Bank entered into a Purchase and Assumption Agreement with the FDIC (Dkt. 38-1at13), under
which Stearns purchased certain assets of Community National, including Berg's note.
On September 29, 2010, the FDIC delivered to Stearns an allonge to the note in favor of
Stearns (Dkt. 2-9). The same day, Berg executed a Change in Terms Agreement, a Mortgage, and
1
an Assignment of Rents, 1 all in favor of Steams (Dkts. 2-10, 2-11, 2-12). In the Change in Terms
Agreement, Berg recognized a principal amount due of $99,024.36, with interest accruing at 5%
(Dkt. 2-10 at 1), and agreed to pay that amount to Steams. The Change in Terms Agreement also
contained a "No Claims Against Lender Provision," .in whie;h Berg "waives and expressly represents
and warrants that [he] has no claims, defenses, setoffs, or counterclaims against [Steams] with
respect to ... payment of the indebtedness or other sums due and payable under" the Agreement (id.
at 2).
Prior to its failure, Berg was a director of Community National. Berg and Community
National jointly contributed to a deferred compensation plan and cash-value life insurance policy for
Berg, which was held by Community National. When Community National failed, the FDIC
assumed the deferred compensation plan and the policy insuring Berg.
Berg filed a claim against the FDIC for the amount of the plan and policy.- The claim was
initially denied, which led Berg to file suit against the FDIC pursuant to 12 U.S.C. §
. 'h
182l(d)(6)(A)(ii). See Hjalmar R. Berg, Jr. v. Federal Deposit Ins. Corp., Case No. 8:10-cv-1331-
JSM-EAJ, Dkt. 1 (M.D. Fla. June 7, 2010). The parties eventually settled, and the FDIC issued a
Notice of Allowance of Claim on September 19, 2011, in Berg's favor (Dkt. 42-4). The Notice stated
thatthe FDIC had allowed Berg's claimin the amountof$81,478.44, and the claimhad beenentered
on the FDIC's records as Certificate No. 50001 (id.). With regard to recovering the asset, the FDIC
notified Berg that "[a]s the [FDIC] liquidates the assets of the receivership, you may periodically
receive payments on your claim through dividends. The Receiver will pay dividends in accordance
I
1Berg
executed the Assignment of Rents in his capacitY as nhstee of the Skip Berg Revocable Living Trust
Dated May 13, 2002.
:' ' ; ,:'
2
with the priorities established by applicable law" (id.). 2
Eventually, Berg defaulted on the promissory note. Stearns brought suit in state court to
recover on the note and foreclose the mortgage against Berg individually and as Trustee of the Skip
Berg Revocable Living Trust Dated May 13, 2002, and joined Eighteen Seventy-Two South Trail,
Inc. (Dkt. 2). 3 Defendants filed their Answer, Affirmative Defense, and Counterclaim in response
(Dkt. 3), which contained one affirmative defense:
SKIP BERG is entitled to a set off in the amount of $81,4 78.44. BERG was
owed $81,478.44 by the Community National Bank at the time that bank
was placed into receivership by the FDIC. The assets of Community Bank
were then transferred to Stearns Bank under a loss share agreement. The
note being sued on was a promissory note in favor of Community National
Bank. BERG was entitled to a set off from Community National Bank and
for that reason entitled to a set off of this claim from Stearns Bank if
Stearns attempts to seek a deficiency judgment against BERG.
(Dkt. 3 at 3-4).
Defendants also asserted a Counterclaim, which added the FDIC as a third-party Defendant.
The Counterclaim sought a declaratory judgment that Stearns and the FDIC are joint venturers as a
result ofthe loss-share agreement, and that Berg is entitled to a set-off against his liability on the note
in the amount of his plan and policy (Dkt. 3 at 7). The Counterclaim was dismissed with prejudice
for lack of subject-matter jurisdiction, as it was barred by 12 U.S.C. § 182l(d)(13)(D)(i),4 and the
FDIC was dismissed from the case.
Stearns now moves for summary judgment. It is undisputed that Berg defaulted on the
2The
FDIC is pennitted to pay dividends on claims in this manner under to 12 U.S.C. § 1821(d)(10)(B).
3Eighteen
Seventy-Two South Trail, Inc. was joined because Stearns alleged that it may claim some interest in
the property subject to the mortgage. Berg is the Registered Agent, President, Treasure, and Director of Eighteen
Seventy-Two South Trail, Inc.
4 Berg filed a lawsuit against Stearns and the FDIC identical to the Counterclaim, which was also dismissed for
lack of subject-matter jurisdiction. See Schuler v. Stearns Bank, N.A. et al., Case No. 8: 13-cv-508-JDW-AEP, Dkt. 39
(M.D. Fla. May 17, 2013).
3
promissory note and that Stearns holds the mortgage at issue. Defendants argue, however, that
Stearns is not entitled to summary judgment because (1) Stearns is not a holder in due course of the
note, and (2) Berg was entitled to a set-off from the note in the amount ofthe compensation plan and
insurance policy. Neither argument is persuasive, and Stearns is entitled to summary judgment.
Holder in Due Course
Berg argues that Stearns is not a holder in due course of the note for two reasons. First, Berg
points to section 673.3021(3)(a), Florida Statutes, which provides that "a person does not acquire
rights of a holder in due course of an instrument taken ... [b]y legal process or by purchase in an
execution, bankruptcy, creditor's sale or similar proceeding." Berg contends that the takeover of a
bank by the FDIC is a "similar proceeding," which means the FDIC, and subsequently Stearns, never
became a holder in due course of the note.
Both federal and state courts have rejected this argument. When it takes over a bank and acts
as a receiver, the FDIC is entitled to all federal common law defenses that could be raised by a holder
in due course under state law. Fed. Deposit Ins. Corp. v. McCullough, 911F.2d593, 602-03 (11th
Cir. 1990). Moreover, the "federal holder in due course doctrine bars the maker of a promissory note
from asserting personal defenses against the Federal Deposit Insurance Corporation in connection
with purchase and assumption transactions involving trouble~ financial institutions." Lassiter v.
Resolution Trust Corp., 610 So. 2d 531, 537 (Fla. 5th DCA 1992). And this protection "extends to
...
:.iJ;:.
subsequent holders of the notes." Id
In short, Berg is barred from asserting that either the FDIC or Stearns is not a holder in due
course of the promissory note by both Eleventh Circuit precedent and state law application of the
federal holder in due course doctrine.
Even if Berg could successfully argue that Stearns was no longer a holder in due course of
4
the original promissory note owned by Community National when it failed, Stearns would still be
entitled to summary judgment on the Change in Terms Agreement signed by Berg after Stearns
assumed the assets and liabilities of Community National. The Agreement originated with Stearns
and has not passed to any subsequent holders. Berg admits that he signed the Agreement, and is
therefore bound to its terms, which are identical to those of the promissory note. 5
Set-Of/
Set-off is an equitable defense. Wiandv. Dancing$, LLC, 919 F. Supp. 2d 1296, 1317 (M.D.
Fla. 2013) (citing Durham Tropical Land Corp. v. Sun Garden Sales Co., 151 So. 327, 328 (Fla.
1932)). To prevail on a claim for set-off, "the defendant must show an existing debt or demand
against the complainant in favor of the defendant, and that the debt arose and existed under
circumstances where disallowing it would be inequitable." Id. (citing Durham Tropical, 151 So. at
328). "The very essence and basis for set-off is mutuality of claims; that is to say claims existing
between the same parties and in the same right." Id.
Berg's set-off defense fails for two reasons. First, there is no dispute that Berg's claim for
the value of the plan and policy is against the FDIC, not against Stearns. Stearns did not acquire
those assets from the FDIC. Berg admitted as much by filing a claim against the FDIC (and
subsequently filing suit) to pursue the assets. The mutuality of parties required for the set-off defense
is therefore not met.
Second, Berg has already prevailed on his claim to recover the amounts owed to him as a
creditor of Community National. The FDIC issued Certificate No. 50001 in the amount of
$81,4 78.44, which is payable by the FDIC through dividends. Allowing Berg to prevail on his set-off
5Additionally, Berg never asserted an affirmative defense claiming that Stearns was not a holder in due course
of the note. The defense is therefore waived. Fed. R. Civ. P. l2(b).
5
defenses against Steams would be akin to a double recovery-an inequitable result inconsistent with
the purposes of the equitable defense of set-off.
Conclusion
There is no dispute that Berg defaulted on the note and mortgage. Steams is therefore entitled
to judgment as a matter oflaw on its claims against Defendants because Defendants' holder in due
course and set-off defenses are legally insufficient. Accordingly,
1) Plaintiff's Motion for Summary Judgment of Foreclosure and Related Relief (Dkt. 38) is
GRANTED.
2) Plaintiff is directed to FILE within three (3) days a proposed form of Final Judgment and
Order of Foreclosure in favor of Plaintiff Steams Bank, National Association, and against
Defendants Skip Berg as Trustee of the Skip Berg Revocable Living Trust dated May 31, 2002, Skip
Berg individually, and Eighteen Seventy-Two South Trail, Inc., in the amount of $129,905.46,6 plus
post-judgment interest as allowed by law to accrue from the date ofthis Order. Plaintiff shall provide
an electronic courtesy copy to chambers in WordPerfect.
3) Jurisdiction is reserved to amend the final judgment, determine and award attorneys' fees,
if any, and award a deficiency judgment if necessary.
4) The Clerk is directed to CLOSE the file.
DONE AND ORDERED this
/
f
'/&..
day of March, 2014.
~~jTEMORE
United States District Judge
Copies to: Counsel of Record
6This amount is calculated from the amount due as of December 13, 2013 ($125,216.78), plus per diem interest
($48.83) from December 13, 2013 to March 19, 2014 (96 days).
6
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