Centerpoint Properties Trust v. Norberg

14 F. Supp. 3d 11, 2014 WL 1432016, 2014 U.S. Dist. LEXIS 50962
CourtDistrict Court, D. Maine
DecidedApril 14, 2014
DocketNo. 2:13-cv-00175-JAW
StatusPublished
Cited by2 cases

This text of 14 F. Supp. 3d 11 (Centerpoint Properties Trust v. Norberg) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centerpoint Properties Trust v. Norberg, 14 F. Supp. 3d 11, 2014 WL 1432016, 2014 U.S. Dist. LEXIS 50962 (D. Me. 2014).

Opinion

ORDER GRANTING THE MOTION OF INTERVENOR UNITED STATES OF AMERICA TO DISSOLVE ATTACHMENT AND ORDERING PLAINTIFF CENTERPOINT TO FILE KEY BANK AFFIDAVITS

JOHN A. WOODCOCK, JR., Chief Judge.

Centerpoint Properties (Centerpoint) prevailed in a lawsuit against Karl Nor-[13]*13berg and Pamela Gleichman in Illinois, and attempted to enforce that judgment against property owned by them in Maine. Centerpoint used Maine’s procedure for prejudgment attachment to freeze funds in a bank account owned by Mr. Norberg and Ms. Gleichman. However, the funds in that account were a statutorily-mandated reserve for a housing development owned by Mr. Norberg and Ms. Gleichman, and funded in part by the United States Department of Agriculture. The United States (Government) intervened on behalf of the United States Department of Agriculture and moved to dissolve the attachment, arguing that the funds are actually “federal funds” not yet spent for their statutory purpose. The Court agrees; the funds came from the federal government, they were given to serve an important federal interest, and the federal government retains detailed and pervasive control over them. Under these circumstances, Centerpoint cannot seize the funds. The Court grants the United States’ motion to dissolve attachment.

I. LEGAL STANDARD

“A party to a civil action ... may move for ... dissolution ... of attachment approved ex parte, within the District of Maine in accordance with state law and procedure as would be applicable had the action been maintained in the courts of the State of Maine.” D. Me. Loo. R. 64. In a Maine state court, the party seeking attachment via trustee process must show

that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an aggregate sum equal to or greater than the amount of the trustee process and any insurance, bond, or other security, and any property or credits attached by writ of attachment or by other trustee process shown by the defendant to be available to satisfy the judgment.

Me. R. Civ. P. 4B(c).

Once the court has ordered trustee process,

any person having an interest in goods or credits that have been attached on trustee process pursuant to an ex parte order ... may ... move the dissolution ... of the trustee process, and in that event the court shall proceed to hear ... such motion.... At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order that the moving party has challenged by affidavit.

Me. R. Civ. P. 4B(j).

Under Federal Rule of Civil Procedure 55(b)(2), a court may enter a judgment against a defaulted party upon application by the other party. However, if the defaulted party has entered an appearance, it is entitled to “written notice of the application for judgment at least 7 days prior to the hearing on such application.” Id. “Although appearance in an action typically involves some presentation or submission to the court ... a defaulting party ‘has appeared’ for Rule 55 purposes if it has indicated to the moving party a clear purpose to defend the suit.” Key Bank v. Tablecloth Textile Co., 74 F.3d 349, 353 (1st Cir.1996) (internal quotations and citations omitted).

II. FACTS

On or about November 15, 1983 and July 1, 2008, Mr. Norberg and Ms. Gleich-man obtained financing under the Consolidated Farm and Rural Development Act from the Rural Housing Service (RHS) of the United States Department of Agriculture (USDA). Second Deck of Virginia Manuel (ECF No. 18) (Oct. 23.2013) (Manuel Second Decl.). They obtained this financing to fund the operation and [14]*14maintenance of Elsemore Estates, a multifamily housing development in Dixfield, Maine. Id. ¶¶ 3-4. As a condition of making those loans, USDA regulations required Mr. Norberg and Ms. Gleichman to open a reserve account to pay for maintenance of and capital improvements to Else-more Estates. Manuel Second Decl. ¶ 5; Manuel Second Decl. Attach. 1 Loan Agreement, ¶5 (ECF No. 18) (July 1, 2008) (Loan Agreement); 7 C.F.R. § 3560.306(a) (2008). Reserve accounts are “ ‘supervised accounts that require [RHS] countersignatures on all withdrawals.’ ” Manuel Second Decl. ¶ 6 (quoting 7 C.F.R. § 3560.306(e)(2)).

On August 8, 2006, Mr. Norberg opened a reserve account at TD Bank to pay for maintenance of and capital improvements to Elsemore Estates. Manuel Second Decl. ¶ 7. That account was numbered 721135392 and was opened as a new, non-personal account for the benefit of Else-more Estates. Id. ¶¶ 7-8; Manuel Second Decl. Attach. 2, at 2 (ECF No. 18) (Aug. 8, 2006) (TD Bank Documents). The account was opened by “Karl S. Norberg DBA Elsemore Est Replacement Res & USDA”; the phrase “Elsemore Est Replacement Res” stands for “Elsemore Estates Replacement Reserve.” TD Bank Documents at 2; Manuel Second Decl. ¶ 9. The term “replacement” identifies the purpose of the funds in the Reserve Account as financing the replacement or repair of capital items at Elsemore Estates. Manuel Second Decl. ¶ 9. The account terms specifically require two signatures for any withdrawal from the reserve account, one of which must be a “USDA Authorized Signer.” TD Bank Documents at 1, 4.

The 2008 loan agreement between the USDA and the Defendants requires that withdrawal and use of the funds in the reserve account must be in accordance with 7 C.F.R. pt. 3560 or any successor regulation. Loan Agreement § 5.b. Under those regulations, the funds deposited in the Reserve Account may only be used for major capital improvements to Elsemore Estates, certain operating expenses for Elsemore Estates, and other purposes that in RHS’s judgment will “promote the loan purposes, strengthen the security or facilitate, improve, or maintain the housing and the orderly collection of the loan without jeopardizing the loan or impairing the adequacy of the security.” Manuel Second Decl. ¶ 13; 7 C.F.R. § 3560.306(h)(4). In some limited instances, portions of accrued interest and excess funds may be withdrawn by the Defendants for other purposes, but only with express consent from USDA. Manuel Second Decl. ¶¶ 13-14.

Federal regulations also govern deposits into supervised bank accounts for USDA-funded housing projects, such as the reserve account in this case. Manuel Second Decl. ¶ 17 (citing 7 C.F.R. § 1902.9(b)). The same regulations contain requirements for tracking deposits and for ensuring that all parties — the borrower, the federal government, and the bank — are well aware of the restrictions contained in the deposit agreement with the bank when deposits are made into that account. Id.

The reserve account is funded with income from the Elsemore Estates housing project. Id. ¶ 18.

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Bluebook (online)
14 F. Supp. 3d 11, 2014 WL 1432016, 2014 U.S. Dist. LEXIS 50962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centerpoint-properties-trust-v-norberg-med-2014.