Federal Deposit Insurance v. Connecticut National Bank

916 F.2d 997, 1990 WL 161799
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 26, 1990
DocketNo. 89-2814
StatusPublished
Cited by3 cases

This text of 916 F.2d 997 (Federal Deposit Insurance v. Connecticut National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Connecticut National Bank, 916 F.2d 997, 1990 WL 161799 (5th Cir. 1990).

Opinion

KING, Circuit Judge:

In this suit brought by construction lenders to enforce a “take-out” agreement by four putative permanent lenders, the district court granted summary judgment in favor of the permanent lenders, finding that the permanent lenders had been absolved, by reason of a breach by the borrower under the construction loan, from their responsibility to fund the permanent loan. Alternatively, the district court found that even if the permanent lenders had not been absolved from their funding responsibility and, indeed, had breached it, the construction lenders (who had loaned in excess of $12,000,000 to the borrower) had incurred no damages because they had obtained on foreclosure property with an approximate value of $5,000,000, which was more than they were entitled to obtain under the court’s construction of the take-out agreement. The construction lenders appeal, and we reverse.

I.

In 1983, Atrium Residences Company (Atrium) planned to construct a multi-story condominium project in Webster, Texas. FirstSouth Federal Savings Bank (First-South) 1 agreed to make a $12,240,000 construction loan conditioned upon Atrium obtaining permanent financing for the project. A take-out agreement, styled [999]*999“Multi-Party Agreement” (the Agreement), was drafted for this purpose and signed by FirstSouth, as the Construction Lender and as one of the permanent lenders, and by the predecessors of Goldome Mortgage Corporation (Goldome), Connecticut National Bank (Connecticut) and Trans-Ohio Savings Bank, F.S.B. (TransOhio), the other permanent lenders (Goldome, Connecticut and TransOhio being herein collectively called the Permanent Lenders). The Agreement, while in some respects not a model of clarity, is the soul of brevity— four and one-half pages. As the district court summed up the situation: “The underlying premise of the [Agreement is FirstSouth’s construction loan to Atrium on the condition that permanent financing of the unsold portion [of the project] 24 months after the closing date of the construction loan is arranged to discharge the construction loan.”

In June 1984, Atrium allegedly diverted $500,000 in construction funds from the project, a breach of the construction loan. FirstSouth notified the Permanent Lenders of the breach on June 7, 1984. Referencing paragraph 6 of the Agreement, First-South advised the Permanent Lenders that they had the right, within 10 days of receipt of the notice, to purchase the construction loan at par, plus accrued interest, or to agree that the breach would not affect such lenders’ agreement to fund the permanent loan. FirstSouth asked that each Permanent Lender advise it of which option it chose within 10 days. Absent from the notice is any description of the nature of the breach or, more significant in view of the terms of paragraph 6, what remedy FirstSouth intended to pursue against Atrium under the terms of the construction loan. Goldome reaffirmed its commitment. TransOhio claimed that it was absolved from its commitment for a reason unrelated to this appeal. Connecticut asked for more information, but advised that it should be considered dubi-tante. According to FirstSouth, Atrium’s default was subsequently cured.

In March 1985, Atrium completed the condominium project. Alas, none of the condominiums had been sold. FirstSouth then called upon the Permanent Lenders to provide the permanent financing necessary to take-out FirstSouth. In the two-year interval between the execution of the Agreement and the call by FirstSouth upon the Permanent Lenders to honor their obligations thereunder, the value of the condominium project, like the value of virtually all Texas real estate, plummeted. The Permanent Lenders refused to fund and claimed that they were no longer obligated to do so. Because of the lack of permanent funding and Atrium’s inability to repay the construction loan, in August 1985, First-South foreclosed and purchased the project at foreclosure. FirstSouth then tried to collect the balance of the loan from Atrium, precipitating the bankruptcies of Atrium and its guarantors. On September 16,1985 —relying on diversity jurisdiction — First-South filed the instant suit in the district court against the Permanent Lenders for breach of contract (specifically, the Agreement) and damages in excess of $7 million. An amended complaint was filed subsequent to FirstSouth’s own receivership.

In late 1988, Goldome filed a motion for summary judgment. For purposes of summary judgment, Goldome assumed that it was still committed under the Agreement but claimed that FirstSouth had failed to sustain any damages by virtue of Gol-dome’s breach. Additionally, Connecticut and TransOhio filed a joint motion for summary judgment. They asserted that they were relieved of any obligation to fund because of the June 1984 default under the construction loan. FirstSouth also filed a motion for partial summary judgment. Oral argument was heard on these motions on December 22, 1988. On June 8, 1989, the district court issued an order granting the Permanent Lenders’ motions for summary judgment and denying FirstSouth’s motion for partial summary judgment. The district court also denied Goldome’s motion to join in the motions of the other Permanent Lenders for summary judgment.

In reaching the aforementioned conclusions, the district court stated that the issue before it was whether “under the [1000]*1000terms of the Agreement, the default in 1984 ended the obligation of the Permanent Lenders to provide permanent funding.” Although it recognized the Agreement’s “silence on [this] crucial issue,” the district court found the Agreement was not ambiguous. Rejecting the notion that under paragraph 6 the parties to the Agreement explicitly had to opt out of the Agreement after notification of a default under the construction loan in order not to be bound by the Agreement, the district court held that because Connecticut and TransOhio did not reaffirm their commitments under the Agreement after Atrium's default in June 1984, they possessed no further obligation to FirstSouth.

Confronting the issue addressed in Gol-dome’s motion for summary judgment — the amount of damages for which Goldome should be held liable, assuming the continued viability of the Agreement — and the fact that Goldome had explicitly recommitted to the Agreement post the default event, the district court turned to paragraph 2 of the Agreement. Focusing on language requiring the Permanent Lenders to commit to lend the lesser of the following: 80% of the “appraised value of the remaining unconveyed portion of the property,” the remaining balance of the construction loan, or $12,240,000, the district court found that the appraised value of the property was $5,000,000 at the time of foreclosure. Under paragraph 2, therefore, the district court reasoned that the Permanent Lenders would be required to fund, in toto, $4,000,000 — i.e., less than the value First-South gained through foreclosure. In so concluding, the district court rejected First-South’s argument that the term “appraised value” referred to an extant pre-construction appraisal. The district court stated that FirstSouth’s reading of paragraph 2 of the Agreement would mean that FirstSouth would get “other parties to finance what it now owns.” Thus, the district court ruled that no damages had been sustained by FirstSouth.

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Bluebook (online)
916 F.2d 997, 1990 WL 161799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-connecticut-national-bank-ca5-1990.