Golden Eagle Investments Co., LLC v. Federal Deposit Insurance Corporation, as Receiver for Premier Bank, Jefferson City, Missouri

Filing 45

ORDER granting in part and denying in part 20 FDIC-R's motion to substitute party. CADC shall be joined as a party to this action. Signed on 9/6/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
GOLDEN EAGLE INVESTMENTS CO.,
LLC

)
)
)
Plaintiff,
)
)
v.
)
)
FEDERAL DEPOSIT INSURANCE
)
CORPORATION, as Receiver for Premier )
Bank, Jefferson City, Missouri
)
)
Defendant.
)

No. 10-04269-CV-FJG

ORDER
Currently pending before the Court is Defendant Federal Deposit Insurance Corporation
as Receiver for Premier Bank of Jefferson City, Missouri’s (“FDIC-R”)’s Motion to Substitute
Defendant (Doc. No. 20).
Plaintiff’s petition alleges two counts against Premier Bank of Jefferson City, Missouri
(“Premier Bank”) (Doc. No. 21). Count I, Slander of Title, seeks damages from Premier Bank
for the alleged wrongful recordation of a Notice of Lis Pendens (Doc. No. 21). Count II, Quiet
Title, seeks to have the Notice of Lis Pendens released (Doc. No. 21). The FDIC-R accepted its
appointment as Receiver for Premier Bank (Doc. No. 21). On or about August 24, 2011, the
FDIC-R sold its promissory note and deed of trust for the subject asset to CADC/RADC Venture
2011-1, LLC (“CADC”) (Doc. No. 20). As such, Defendant FDIC-R states it no longer has an
interest in the subject asset, CADC is now the real party in interest to this case, and CADC should
be substituted for FDIC-R in the above-styled action (Doc. No. 20).
Plaintiff, however, states that while CADC may be the proper party in interest with respect
to matters dealing solely with the promissory note or deed of trust, it is not the proper party with
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respect to Plaintiff’s tort claims against Premier Bank (Doc. No. 21). Plaintiff states substitution of
FDIC-R for CADC would limit Plaintiff’s ability to recover damages (Doc. No. 21).
On July 26, 2012, the Court requested further briefing from the parties (Doc. No. 39). On
July 30, 2012 Plaintiff submitted its briefing to the Court (Doc. No. 41). On August 3, 2012,
Defendant submitted its briefing to the Court (Doc. No. 42).
When the FDIC is appointed as receiver of a closed depository institution, it succeeds to “all
rights, titles, powers, and privileges of the insured depository institution and may take over the
assets and operate the institution. In re Shirk, 437 B.R. 592, 600 (S.D. Ohio 2010) quoting 12
U.S.C. § 1821(d)(2)(A)(i) & (B)(i). Further, when appointed as a receiver, the FDIC…steps into
the shoes of the failed [financial institution] and operates as its successor. Id. citing, O’Melveny &
Myers v. FDIC, 512 U.S. 79, 86 (1984). The FDIC may liquidate the assets of a failed financial
institution or may transfer any asset or liability of the institution. Id. quoting 12 U.S.C. §
1821(d)(2)(G)(i)(II). Although the FDIC has the power to sell an asset while retaining a related
liability, no liability is transferred to an assuming institution absent an express transfer. Id. quoting
Kennedy v. Mainland Sav. Ass’n., 41 F.3d 986, 990-91 (5th Cir. 1994).
Therefore, in this case, FDIC-R obtained the rights of Premier Bank as its Receiver. If,
under the Sale Agreement between FDIC-R and CADC there was an express transfer of liability,
CADC would assume the liabilities of Premier Bank. FDIC-R states in its briefing that, under
the Sale Agreement, no express transfer of liability was made (Doc. No. 42). In other words,
CADC did not assume liability for any claims arising from Premier’s action or inaction seeking
monetary relief (Doc. No. 42). Such liability remains with FDIC-R (Doc. No. 42). However,
under the Sale Agreement, CADC is responsible for defending those claims which seek any nonmonetary/equitable relief (Doc. No. 42). Given that the Complaint, in this case, seeks monetary
relief under Count I and non-monetary relief under Count II, the Court finds it proper to join
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CADC as a party to this action. Pursuant to Federal Rule of Civil Procedure 25(c), FDIC-R’s
Motion to Substitute is hereby GRANTED in part and DENIED in part (Doc. No. 20). CADC
shall be joined as a party to this action.
IT IS SO ORDERED.
Date: September 6, 2012
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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