Celentano v. United States

41 Fed. Cl. 596, 1998 U.S. Claims LEXIS 211, 1998 WL 549997
CourtUnited States Court of Federal Claims
DecidedAugust 26, 1998
DocketNo. 97-259C
StatusPublished
Cited by2 cases

This text of 41 Fed. Cl. 596 (Celentano v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Celentano v. United States, 41 Fed. Cl. 596, 1998 U.S. Claims LEXIS 211, 1998 WL 549997 (uscfc 1998).

Opinion

OPINION

HORN, Judge.

BACKGROUND

Plaintiff is Mary N. Celentano as the original owner of Beaver Brook Apartments, and Mary N. Celentano as the trustee of Beaver Brook Apartments Associates, which is a Florida partnership and the current owner of Beaver Brook Apartments as successor in interest to Mary N. Celentano. The defendant is the Department of Housing and Urban Development (HUD), an agency of the United States.

Plaintiff brought this action to recover damages arising from the refusal by the United States to permit plaintiff to prepay the mortgage into which Mary N. Celentano had entered for the purpose of financing the development and construction of Beaver Brook Apartments, a 172 unit multifamily rental housing project for low-income and moderate-income tenants in Ansonia, Connecticut. Plaintiff alleges that her right to prepay the mortgage derives from contracts entered into between Ms. Celentano and the Department of Housing and Urban Development. As a result of the enactment of legislation that limited plaintiffs right to prepay, plaintiff claims that defendant has breached its contract with plaintiff. Further, plaintiff claims that defendant’s actions constitute a taking without the payment of just compensation in violation of the Fifth Amendment to the United States Constitution. Plaintiff seeks damages of not less than $4 million.

Defendant moves to dismiss plaintiffs breach of contract claim for lack of subject matter jurisdiction, contending that the statute of limitations had expired before the commencement of this suit.

FACTS

A. Statutory and Regulatory Background

In 1934, Congress enacted the National Housing Act (NHA) “[t]o encourage improvement in housing standards and conditions, to provide a system of mutual mortgage insurance, and for other purposes.” Ch. 847, preamble, 48 Stat. 1246 (1934). Under the NHA, Congress authorized the creation of the Federal Housing Administration (FHA) and established a national housing program supported by federal mortgage insurance. The NHA has been amended frequently. During the 1950’s and 1960’s, Congress amended the NHA to encourage private developers to construct, own, and manage housing projects for low- and moderate-income families. To implement that legislation, Congress authorized first the FHA and later HUD1 to provide mortgage insurance to enable private lending institutions to provide low-interest mortgages to housing developers.

1. Section 221(d)(3) Mortgage Insurance Program

Section 221 of the NHA, as amended, was enacted for the purpose of “assistfing] private industry in providing housing for low and moderate income families and displaced families.” 12 U.S.C. § 17151(a) (1994).2 See[598]*598tion 221 authorized HUD to insure mortgages for multifamily housing projects, including advances during construction “upon such terms and conditions as [HUD] may prescribe,” and “to make commitments for the insurance of such mortgages prior to the date of their execution or disbursement thereon.” Id. at § 17152(b).

With respect to the prepayment of mortgage loans insured under section 221(d)(3) of the NHA, HUD regulations in effect at the time plaintiffs Note, Mortgage and Regulatory Agreement were executed in October 1968 gave loanholders the unilateral right to prepay the mortgage 20 years from the date of final endorsement of the mortgage. 24 C.F.R. § 221 (1978). These HUD regulations provided, in pertinent part:

(a) Prepayment in full—(1) Without prior Commissioner consent. A mortgage indebtedness may be prepaid in full and the Commissioner’s controls terminated without the prior consent of the Commissioner in the following eases: ... (ii) Where the mortgagor is a limited distribution type, which is not receiving payments from the Commissioner under rent supplement contract executed pursuant to the provisions of §§ 5.1 et seq. of this title, and where the prepayment occurs after the expiration of 20 years from the date of final endorsement of the mortgage.

24 C.F.R. § 221.524(a) (1978).

The prepayment regulations also contained a provision concerning the effect of amendments to the regulations appearing in that subpart:

221.749 Effect of Amendments
The regulations in this subpart [24 C.F.R. Part 221, Subpart C] may be amended by the Commissioner at any time and from time to time, in whole or in part, but such amendment shall not adversely affect the interests of a mortgagee or lender under the contract of insurance on any mortgage or loan already insured, and shall not adversely affect the interests of a mortgagee or lender on any mortgage or loan to be insured on which the Commissioner has made a commitment to insure.

24 C.F.R. § 221.749 (1978).

2. Emergency Low Income Housing Preservation Act of 1987 (ELIHPA)

ELIHPA, enacted February 5, 1988, placed restrictions upon the ability of an owner of “eligible low income housing” to prepay the HUD-insured mortgage, and as a result, remove a project from the Section 221(d)(3) housing program. 101 Stat. 1877. ELIHPA provided that an owner of “eligible low income housing may prepay, and a mortgagee may accept prepayment of, a mortgage on such housing only in accordance with a plan of action approved by the Secretary of Housing and Urban Development....” Id. at § 221(a), 101 Stat. 1878-79. For purposes of ELIHPA, the term “eligible low income housing” included “housing financed by a loan or mortgage” that is insured or held by HUD, and that “under regulation or contract in effect before the date of enactment of [ELIHPA], is or will within 1 year become eligible for prepayment without prior approval of the Secretary.” ELIHPA at § 233(1), 101 Stat. 1885.

Under ELIHPA, an owner of eligible low-income housing seeking to initiate prepayment was required to file with HUD a “notice of intent” and, after receiving certain information from HUD, a “plan of action.” Id. at §§ 222, 223, 101 Stat. 1879. Before approving a plan of action that involved termination of the low income affordability restrictions, ELIHPA required that HUD make a written finding that—

(1) implementation of the plan of action will not materially increase economic hardship for current tenants or involuntarily displace current tenants (except for good cause) where comparable and affordable housing is not readily available; and
(2) (A) the supply of vacant, comparable housing is sufficient to ensure that such prepayment will not materially affect—
(i) the availability of decent, safe, and sanitary housing affordable to lower in[599]

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Cite This Page — Counsel Stack

Bluebook (online)
41 Fed. Cl. 596, 1998 U.S. Claims LEXIS 211, 1998 WL 549997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/celentano-v-united-states-uscfc-1998.