First NBC Bank v. Levy Gardens Partners 2007, LP

Filing 57

ORDER: IT IS HEREBY ORDERED that Federal Deposit Insurance Corporation's 13 Motion to Stay Action Pending Exhaustion of Administrative Remedies is GRANTED. IT IS FURTHER ORDERED that this matter is STAYED and ADMINISTRATIVELY CLOSED for a peri od of 180 days from the date of the request for stay. The Clerk of Court shall mark this action closed for statistical purposes. The Court shall retain jurisdiction and the case shall be restored to the trial docket upon motion of a party at the expiration of 180 days from the date of the request for stay. Signed by Judge Nannette Jolivette Brown on 10/5/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FIRST NBC BANK

CIVIL ACTION

VERSUS

NO. 17-6652

LEVY GARDENS PARTNERS 2007, LP

SECTION: “G”(2)

ORDER
Pending before the Court is the Federal Deposit Insurance Corporation’s (the “FDIC-R”),
acting as receiver for First NBC Bank, Motion to Stay Action Pending Exhaustion of
Administrative Remedies.1 The FDIC-R moves the Court to stay the present action for 180 days,
pending parties’ exhaustion of their administrative remedies as set forth in section 1821 of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), or, in the
alternative, for a stay of 90 days as provided for by the statute.2
Having considered the motion, the memorandum in support, the memorandum in response,
the memorandum in reply, and the applicable law, the Court will grant a stay of this case for a
period of 180 days and administratively close it until that time.
I. Background
On March 14, 2017, First NBC Bank of New Orleans, LA (“First NBC”) brought a
foreclosure action by executory process against Levy Gardens Partners 2007, LP, (“Levy
Gardens”) in Civil District Court for the Parish of Orleans, State of Louisiana.3

1

Rec. Doc. 13.
Id.
3
See Rec. Doc. 1-2; see also Rec. Doc. 13-1 at 1.
2

1

On April 28, 2017, First NBC was closed by the Louisiana Office of Financial Institutions,
and the FDIC-R was named receiver.4
On July 11, 2017, the FDIC-R filed a Motion for Substitution of Parties in the state action,
as the FDIC-R notified parties that it succeeded to all rights, titles, powers, and privileges of First
NBC.5 Moreover, on July 11, 2017, the FDIC-R filed a Notice of Removal, removing the state
action to this Court pursuant to 12 U.S.C. § 1819(b)(2)(B) and 28 U.S.C. § 1441.6
On July 21, 2017, the FDIC-R filed the instant Motion to Stay Action Pending Exhaustion
of Administrative Remedies, along with an accompanying memorandum.7 On July 31, 2017, Levy
Gardens filed a response.8 On August 9, 2017, FDIC-R filed a reply memorandum to Levy
Gardens’ response.9
II. Parties’ Arguments
A. FDIC-R’s Memorandum in Support of its Motion to Stay Action
In support of the motion to stay, the FDIC-R asserts that it is entitled to a stay as the receiver
of a failed institution pursuant to FIRREA.10 According to the FDIC-R, FIRREA “establishes a
claim administration and review procedure by which all claims asserted against the assets of the
failed institution must be submitted to the FDIC-R for a determination of whether they will be
allowed or disallowed in the FDIC’s discretion.”11 The FDIC-R further avers that other courts and
Congress have accepted FIRREA’s meaning as providing an “explicit mandate for exhaustion of
administrative remedies.”12

4

Rec. Doc. 13-1 at 1.
See Rec. Doc. 1-4; see also Rec. Doc. 13-1 at 2.
6
Rec. Doc. 1; see also Rec. Doc. 13-1 at 2.
7
Rec. Doc. 13; Rec. Doc. 13-1.
8
Rec. Doc. 16.
9
Rec. Doc. 28.
10
Rec. Doc. 13-1 at 2.
11
Id.
12
Id.
5

2

The FDIC-R asserts that the requirement for the exhaustion of the administrative claims
process applies to the present suit, since Levy Gardens has brought claims against First NBC.13
Moreover, according to FDIC-R, FIRREA provides an administrative process whereby “creditors
have 90 days to present their claims against the assets of the failed institution upon receiving notice
from the FDIC.”14 Then, the FDIC-R asserts, the FDIC has 180 days to consider the claim.15
Moreover, according to FDIC-R, 12 U.S.C. § 1821(d)(12)(A) allows the FDIC-R to request
a stay after it has been appointed receiver for a failed depositary institution, and “courts are
required to grant the FDIC-R’s requested stay.”16
Thus, the FDIC-R avers, it is “entitled to a mandatory stay of this action for a period of 90
days.”17 The FDIC-R continues to assert that the administrative claims process, which it argues
must be exhausted, will likely not be completed at the end of 90 days, so it requests a 180 day stay
“to allow the claims process to conclude.”
B. Levy Gardens’ Response to the Motion to Stay
Levy Gardens first states that it “has no objection to the 180 days requested as to claims
against FDIC-R,” but it “questions whether the FDIC request can result in a stay of its third-party
demand.”18
Levy Gardens then asserts that the court should convert the ongoing executory process to
ordinary process because the stay is allegedly incongruent with the strict requirements of executory
process.19 According to Levy Gardens, executory process is unavailable under the Federal Rules

13

Id.
Id. (citing 12 U.S.C. § 1821(d)(3)(B)(i).
15
Id. (citing 12 U.S.C. § 1821(d)(5)(A)(i).
16
Id.
17
Id. at 4.
18
Rec. Doc. 16 at 1.
19
Id. at 2
14

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of Civil Procedure.20 Arguing for the conversion to ordinary process, Levy Gardens then asserts
that the FDIC-R action can be “bifurcated from the third-party demand and neither matter suffer
from delay.”21
Finally, Levy Gardens avers that “the third-party demand seeking the enforcement of the
Lender’s Policy” is properly before the court pursuant to ancillary jurisdiction, since the FDIC-R
has claimed jurisdiction in this court.22 Thus, Levy Gardens concludes that “[t]he FDIC Motion
should be granted so long as it does not impede the progress of the third-party demand.”23
C. Reply Memorandum by FDIC-R to Levy Gardens’ Response
In reply, the FDIC-R first asserts that an “intervention” filed by Levy Gardens prior to
removal “has absolutely nothing to do with the primary demand which was filed as an executory
process foreclosure action to seize real estate collateral securing a defaulted note.”24 The Court
assumes that the FDIC-R’s reference to an “intervention” refers to Levy Gardens’ third-party
demand, as, throughout the reply, it is directly responding to Levy Gardens’ arguments regarding
the third-party demand using the term “intervention.” However, the FDIC-R avers, FIRREA is
“clear and unequivocal” that “the stay applies to all parties.”25 FDIC-R contends that litigating the
matters outside the instant primary demand “should not occur anyway because of the stay.”26
Additionally, according to the FDIC-R, conversion to an ordinary action in the present
matter would be “improper.”27 The FDIC-R asserts that a creditor must consent to such a
conversion, and it has not given its consent.28 Moreover, FDIC-R avers, Federal Rule of Civil

20

Id.
Id. at 3.
22
Id.
23
Id. at 4.
24
Rec. Dec. 28 at 1.
25
Id. at 2.
26
Id.
27
Id.
28
Id.
21

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Procedure 69(a)(1) allows for executory process in federal court, since it states that the procedure
of execution of a judgment must accord with the procedure of the state where the court is located.29
The FDIC-R further argues that “such conversion affords no remedy against a stay,” and Levy
Gardens has no basis for the argument that the stay should only be partial in effect to allow its
third-party demand to proceed.
Finally, FDIC-R states that “the argument as to ancillary jurisdiction, even if it exists in
this case, affords no support to have the “intervention” excluded from a stay.”30
III. Law and Analysis
A. Legal Standard
12 U.S.C. § 1821(d)(12)(A) provides:
After the appointment of a conservator or receiver for an insured depository
institution, the conservator or receiver may request a stay for a period not to exceed
. . . 90 days, in the case of any receiver, in any judicial action or proceeding to
which such institution is or becomes a party.
12 U.S.C. § 1821(d)(12)(B) further provides that “the court shall grant such stay as to all parties.”
Moreover, a district court has the inherent power to “control the disposition of the causes
on its docket with economy of time and effort for itself, for counsel, and for litigants.”31 This
authority includes the district court’s wide discretion to grant a stay in a pending matter.32
Finally, no part of FIRREA prohibits the Court from discretionarily granting a stay in
excess of 90 days. Indeed, “[a] number of courts have held that litigation may be stayed during
such portion of the receiver’s 180-day period as remains at the time of the application for stay.”33

29

Id.
Id.
31
Landis v. North American Co., 299 U.S. 248, 254 (1936).
32
In re Ramu Corp., 903 F.2d 312, 318 (5th Cir. 1990).
33
11 Am. Jur. 2d Banks and Financial Institutions § 1097 (2017).
30

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B. Analysis
12 U.S.C. § 1821(d)(12)(A) entitles the receiver for an insured depository institution to
request a stay of up to 90 days, and Section 1821(d)(12)(B) requires that the court grant such a
stay.
Here, the FDIC-R has been acting as the receiver for First NBC, an insured depository
institution, after it was closed by the Louisiana Office of Financial Institutions. As such, the FDICR is entitled to a stay of 90 days.
However, the FDIC-R has requested a stay of 180 days in order to exhaust the
administrative review process pursuant to FIRREA.34 The Fifth Circuit has stated, “The stay of a
pending matter is ordinarily within the trial court’s wide discretion to control the course of
litigation, which includes authority to control the scope and pace of discovery.”35 Moreover,
FIRREA does not prohibit a stay longer than 90 days.
In this case, the FDIC-R has requested a stay of 180 days because it asserts that the
administrative claims process is unlikely to be completed at the end of 90 days.36 In its response,
Levy Gardens does not object to the request for a 180-day stay of the primary demand, and it does
not argue that FDIC-R’s requested stay should be limited to 90 days.37 Thus, the Court determines
that the stay will be for a period of 180 days from the date of the request for stay.
Instead, Levy Gardens argues that the stay should not apply to its third-party demand,
which it alleges “can be bifurcated” from the primary demand.38 Levy Gardens further argues that
the action should be converted to ordinary process from executory process.39 In its reply, the FDIC-

34

Rec. Doc. 13.
In re Ramu, 903 F.2d at 318 (citing Matter of Evangeline Refining Co., 890 F.2d 1312, 1320 (5th Cir. 1989)).
36
Rec. Doc. 13-1 at 4.
37
Rec. Doc. 16 at 1.
38
Id.
39
Id.
35

6

R argues that Section 1821 applies to “all parties,” so the stay applies to the third-party demand as
well.
Indeed, 12 U.S.C. § 1821(d)(12)(B) states that “the court shall grant such stay as to all
parties.” Here, although the primary demand and third-party demand are separate claims, the
parties in the third-party demand are still parties in this action. Moreover, Levy Gardens provides
no authority that supports the separation of a primary demand from a third-party demand for the
purpose of defining parties or in the case of a mandatory stay. As a result, the statute requires that
the stay apply to the parties of the third-party demand.
Accordingly, the Court will stay and administratively close the entire matter for 180 days
from the date of the request for stay. Due to the entire action being stayed and administratively
closed for 180 days from the date of the request for stay, it is unnecessary for the court to determine
the motion to convert to ordinary process at this time.

IV. Conclusion
In order to allow compliance with the mandatory review process under FIRREA, the Court,
in its discretion, will grant a stay of this case for a period of 180 days from the date of the request
for stay and administratively close it until that time. Accordingly,
IT IS HEREBY ORDERED that Federal Deposit Insurance Corporation’s Motion to Stay
Action Pending Exhaustion of Administrative Remedies40 is GRANTED.
IT IS FURTHER ORDERED that this matter is STAYED and ADMINISTRATIVELY
CLOSED for a period of 180 days from the date of the request for stay. The Clerk of Court shall
mark this action closed for statistical purposes. The Court shall retain jurisdiction and the case

40

Rec. Doc. 13.

7

shall be restored to the trial docket upon motion of a party at the expiration of 180 days from the
date of the request for stay.
NEW ORLEANS, LOUISIANA, this ____ day of October, 2017.
5th
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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