Leach v. FDIC

Opinion

Leach v. FDIC CV-91-581-B 01/28/93 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Roy F. Leach, Jr., and Kimberly A. Leach, as Trustees 820 Lafayette Realty Trust

v. Civil No. 91-581-B

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Numerica Savings Bank, F.S.B.

O R D E R

Pursuant to an October 7, 1992 Order of the Magistrate Judge,

defendant FDIC was directed to file a dispositive motion on or

before November 6, 1992. The FDIC responded to this directive by

filing a motion to dismiss for failure to comply with

administrative claims procedure (document no. 9). Plaintiffs Roy

F. Leach, Jr. and Kimberly A. Leach, as Trustees of 820 Lafayette

Realty Trust, objected to the motion on the grounds that it was

barred by 11 U.S.C. § 362(a)(1).

11 U.S.C. § 362(a) (1) applies only to claims commenced against

the debtor. See Martin-Triqona v. Champion Fed. Sav. & Loan Ass'n.,

892 F.2d 575, 577 (7th Cir. 1989); In Re Barry Estates, 812 F.2d

67, 71 (2nd Cir. 1987); Assoc, of St. Croix Condominium Owners v.

St. Croix Hotel Corp. 682 F.2d 446, 448 (3rd Cir. 1982) . This action was commenced by the debtor. Accordingly, 11 U.S.C.

§ 362(a)(1) does not provide a valid basis for objection to the

FDIC's motion to dismiss.

Plaintiffs are directed to file an objection containing a

statement of any other grounds on which the court should deny the

defendant's motion. If an objection is not filed on or before

February 15, 1993, the court will grant the motion to dismiss.

SO ORDERED.

Paul Barbadoro United States District Judge

January 28, 1993

cc: Thomas M. Keane, Esg. Michael Lenehan, Esg.