Sweeney v. Resolution Trust

• Court: Court of Appeals for the First Circuit
• Decided: February 3, 1994
• Docket: 93-1427
• Status: Published

Opinion

USCA1 Opinion

February 3, 1994
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

Nos.  93-1427
                93-1613

                              RHETTA B. SWEENEY, ET AL.,
                               Plaintiffs, Appellants,

                                          v.

                        RESOLUTION TRUST CORPORATION, ET AL.,
                                Defendants, Appellees.

                                 ____________________

                                     ERRATA SHEET

               The opinion  of this  court issued on  January 31,  1994, is
          amended as follows:

               Page 7, line  21, should read "January 11,  1991" instead of
          "January 11, 1993."

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

Nos. 93-1427
               93-1613

RHETTA B. SWEENEY, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                        RESOLUTION TRUST CORPORATION, ET AL.,

                                Defendants, Appellees.

__________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

               Rhetta B. Sweeney, on brief pro se.
               _________________
               Paul R. Gupta, Joseph F. Shea and  Nutter, McClennen & Fish,
               _____________  ______________     _________________________
          on brief for appellees.

__________________
                                   January 31, 1994
                                  __________________

Per Curiam.  Appellants Rhetta Sweeney, individually and
                 __________

            as trustee of the Maple Leaf Realty Trust and of the Canadian

            Realty  Trust, and  John Sweeney  [the  Sweeneys] appeal  the

            final judgment entered by the United States District Court of

            the  District of Massachusetts for appellees Resolution Trust

            Corporation  [RTC], in  its capacity  as  receiver of  ComFed

            Savings  Bank,  ComFed  Mortgage  Company,  Inc.  and  Comfed

            Advisory Company,  Inc. [collectively  "ComFed"], and  Dennis

            Furey,  an  employee of  ComFed Mortgage  Company, Inc.   The

            Sweeneys also appeal  the district court award to  the RTC of

            attorneys'  fees incurred  in responding  to  what the  court

            found a frivolous motion to remand.  We affirm.

                                      Background
                                      Background

                 In 1987,  the Sweeneys  borrowed $1,600,000  from ComFed

            for construction  of single  family homes  and other work  on

            their property in Hamilton, Massachusetts.  The obligation is

            evidenced  by  a  promissory note,  a  loan  agreement  and a

            construction loan agreement, all dated August  27, 1988.  The

            Sweeneys  allege that  ComFed also  agreed  to an  additional

            $900,000  in construction financing.   ComFed denies  that it

            made  any agreement  as  to  a further  loan.   The  Sweeneys

            defaulted on the note and, in November 1988, ComFed initiated

            foreclosure proceedings.  

                 In April 1989, the Sweeneys filed a nine count complaint

            in   Middlesex  Superior   Court  asserting   various  lender

-3-

liability  claims against ComFed  and Furey.   ComFed filed a

            counterclaim  seeking   a  determination  of   the  Sweeney's

            liability to ComFed under the terms of the $1,600,000 note on

            which the Sweeneys had allegedly defaulted.  In October 1989,

            the superior court  issued an injunction barring  ComFed from

            foreclosing on the Sweeney's mortgaged property.

                 In March  1990,  after a  twelve day  trial, a  superior

            court  jury  returned  a   special  verdict  awarding  ComFed

            $2,069,586.33  for  the  Sweeneys' breach  of  the  note, and

            Rhetta   Sweeney  $65,000   for  intentional   infliction  of

            emotional distress.  The court reserved to itself judgment on

            two counts:  ComFed's alleged violation of Mass.  Gen. L. ch.

            93A  and the  claim for  specific performance  of an  alleged

            agreement by ComFed to a partial release of the mortgage.  

                 On  December 13, 1990, the RTC was appointed conservator

            of Comfed and,  on January 11, 1991, removed the  case to the

            United   States   District   Court   for   the  District   of

            Massachusetts.1  No judgment had  yet been entered on the two

            counts tried to the superior  court.  However, on January 30,

            1991, the superior court purported to enter judgment on those

            two counts.   The court purported to find for the Sweeneys on

____________________

            1.  On January  31, 1991, the  RTC was appointed  receiver of
            ComFed  and  conservator of  ComFed, F.A.   On  September 13,
            1991, the RTC was appointed receiver of ComFed, F.A.  The RTC
            as  receiver of ComFed  retains the liabilities  in this case
            while the RTC as receiver of ComFed, S.A. retains the assets.
            "RTC" as used in this opinion  refers to the RTC in both  its
            roles.

                                         -4-

their  chapter 93A claim in the amount of $2,998,931.44, plus

            interest  and costs,  and  attorneys' fees  of  $97,704.   No

            copies or notices of this  opinion were mailed to the parties

            by the court clerk.

                 On January 31, 1991, counsel  for the RTC learned of the

            purported  opinion when  he went  to  the Middlesex  Superior

            Court Clerk's office to transport  the record to the  federal

            district court.2   Believing  the opinion  to  be a  nullity,

            counsel contacted the Massachusetts Attorney General's Office

            to urge  that the opinion  be withdrawn.  The  superior court

            refused  to do  so and  instead released  the opinion  to the

            Sweeneys  on February  25, 1991.   Counsel  for the  RTC then

            filed  the opinion  with the  district court  under seal  and

            moved to  expunge  it from  the  record.   On  March  1,  the

            Sweeneys filed  a motion to  remand the case to  the superior

            court   on  the  ground   that  the  district   court  lacked

            jurisdiction.

                 After  a series  of  evidentiary hearings,  the district

            court  determined that the  case had been  removed on January

            11, 1991 and found that the Sweeneys' objection, which was in

            the court's view an objection to venue not jurisdiction,  was

            untimely.    On January  9,  1992,  the  RTC moved  that  the

            district  court enter the superior court  jury verdict in its

____________________

            2.   Testimony was  presented before the district  court that
            this was in conformity with Middlesex Court practice.

                                         -5-

entirety and grant the RTC summary judgment on the two counts

            which had been  tried to  the superior court.   On April  14,

            1992, the district court entered the jury verdict and granted

            summary  judgment to the RTC.   On April  27, 1992, the court

            vacated  the superior court  injunction.  Final  judgment was

            entered on  February 9, 1993.   On February 13,  1993, Rhetta

            Sweeney, purporting to act on  behalf of all the  plaintiffs,

            filed  a third  motion to  remand  the case  to the  superior

            court.  Finding that the motion made no new factual  or legal

            argument,  the  district  court  allowed  the RTC's  request,

            pursuant to Fed. R. Civ.  P. 11, for attorneys' fees incurred

            in responding to  this motion.  The Sweeneys  now appeal both

            the final  order of  the court and  the grant  to the  RTC of

            attorneys' fees.

                                     Discussion 
                                     Discussion

                 The Sweeneys contend first that the district court erred

            in  denying their  motion to  have the  case remanded  to the

            superior  court.   According to  appellants,  removal to  the

            United  States   District   Court   for   the   District   of

            Massachusetts was  improper since  12 U.S.C.    1441(a)(l)(3)

            allows for  removal only to the United  States District Court

            for  the  District  of  Columbia.3   Construing  this  as  an

____________________

            3.    At  the  time  of  appellants'  motion,     1441a(l)(3)
            provided that venue was proper in:

                 the  United States District  Court for the District
                 of  Columbia, or if the action, suit, or proceeding

                                         -6-

objection to venue,  the district court denied the  motion on

            the ground that it had been filed more than thirty days after

            removal.  See 28 U.S.C.    1447(c).  The Sweeneys argue  that
                      ___

            this period should have been tolled because of the RTC's "bad

            faith" in  withholding  from  them  a copy  of  the  superior

            court's  purported  judgment,  the  existence  of  which  the

            Sweeneys discovered only on February 25, 1991.4

                 Even  if we  grant  arguendo that  venue  in the  United
                                     ________

            States District Court  for the District of  Massachusetts was

            improper  pursuant  to   1441(a)(l)(3) and  that  appellants'

            motion  is subject  to equitable  tolling, we  still find  no

            error in the district court's denial of appellants' motion to

            remand.  28 U.S.C.   1441(a) provides that 

____________________

                 arises out of  the actions of the  Corporation with
                 respect to  an institution for which  a conservator
                 or a receiver has been appointed, the United States
                 district   court  for   the   district  where   the
                 institution's principal business is located.

            Since this  suit did  not arise  "out of  the actions  of the
            Corporation,"  venue was  proper only  in  the United  States
            District  Court  for  the  District  of  Columbia.    Section
            1441a(l)(3)  was amended effective  February 1, 1992.   Under
            the  amended section, venue would be proper in Massachusetts.
            We express no opinion as  to whether this amendment should be
            applied retroactively.

4.  The  Sweeneys  appear   to  concede  that  12   U.S.C.   
            1441a(l)(3) is a venue not  a jurisdictional statute.  See In
                                                                   ___ __
            re 5300 Memorial  Investors, Ltd., 973  F.2d 1160, 1163  (5th
            ________________________________
            Cir. 1992) (federal  courts "consistently have  construed the
            former provision in  section 1441a(l)(3) . . .  as concerning
            solely venue and  not jurisdiction").  The district court had
            jurisdiction  over  this  action  pursuant  to  12  U.S.C.   
            1441a(l)(1).

                                         -7-

[e]xcept as otherwise expressly  provided by Act of
                                       _________

                 Congress, any civil action brought in a State court

                 of which the  district courts of the  United States

                 have original jurisdiction may be  removed . . . to

                 the district  court of  the United  States for  the

                 district  and  division embracing  the  place where

                 such action is pending. (emphasis added)

          Since nothing  in 12 U.S.C.   1441a(l)(3) expressly limits venue,

          the general venue provision of  28 U.S.C.   1441(a) is applicable

          to this case.  See Hellon & Assoc., Inc. v. Phoenix Resort Corp.,
                         ___ ____________________     ___________________

          958 F.2d 295, 298 (9th Cir. 1992) (removal proper under   1441(a)

          since "[n]othing  in the statutory language provides  that RTC is

          limited  to the  specific  removal  provision  found  in  section

          1441a(l)(3)");  Resolution Trust Corp. v. Lightfoot, 938 F.2d 65,
                          _____________________     _________

          68  (7th Cir.  1991) (finding  removal provision  of 12  U.S.C.  

          1441a(l)(3)  "to supplement, rather  than to replace,  those of  

          1441(a)").   Given that the RTC removed this case to the district

          court of  the United States  where the action was  pending, venue

          was proper pursuant to 28 U.S.C.   1441(a) and appellants' motion

          to remand was properly denied.

                 The Sweeneys next contend that the district court erred in

          not  entering the  purported judgment  of the  superior court  in

          their favor.  However, the district court supportably  found that

          this case had been  removed to the federal  court on January  11,

          1991.   "At  that  point,  the jurisdiction  of  the state  court

-8-

'absolutely ceased, and  that of the [federal  court] immediately

          attached,'"  Hyde Park Partners.  L.P. v. Connolly, 839 F.2d 837,
                       ________________________     ________

          841 (1st  Cir. 1988) (quoting  Steamship Co. v. Tugman,  106 U.S.
                                         ____________     ______

          118,  122 (1882)), and the state court was under an obligation to

          "proceed no  further unless and  until the case  [wa]s remanded,"

          28 U.S.C.   1446(e); see also Tugman,  106 U.S. at 122 (once case
                               ___ ____ ______

          removed,  state court  had "duty .  . . to  proceed no further").

          Consequently, the purported judgment of the state court was "void

          ab initio," Hyde Park Partners, 839 F.2d at 842, and the district
          __ ______   __________________

          court committed no error in  refusing to enter judgment in accord

          with it.

                 The  Sweeneys' third contention is that the district court

          improperly granted summary  judgment to the RTC  on the Sweeneys'

          claim  under chapter  93A    2(a).5   Appellants  argue that  the

          district court  erred when  it found that  their claim  relied on

          alleged  promises not  in writing  and  hence was  barred by  the

          doctrine enunciated  in D'Oench, Duhme  & Co. v.  Federal Deposit
                                  ____________________      _______________

          Ins.  Corp., 315  U.S. 447  (1942) and  codified  at 12  U.S.C.  
          __________

          1823(e). 

                 The  Sweeneys' principal claim  under chapter 93A  is that

          the  closing loan  documents  were  "misleading, oppressive,  and

          unconscionable" in that they led  the Sweeneys to understand that

          ComFed would provide them with construction financing in addition

____________________

            5.  Mass.  Gen. L.  c. 93A    2  protects against  "unfair or
            deceptive acts  or practices in  the conduct of any  trade or
            commerce."

                                         -9-

to  the  $1,600,000   loan  actually  provided.     According  to

          appellants, ComFed knew that without the additional financing the

          Sweeneys would be forced to default on the original agreement, as

          in fact happened.  

                 The D'Oench doctrine  applies to the RTC when  it acts, as
                     _______

          in the instant case, in its capacity as receiver, see 12 U.S.C.  
                                                            ___

          1441a(b)(4)(A), and  extends to  the financial  interests of  any

          wholly owned subsidiaries of a failed institution,  see Oliver v.
                                                              ___ ______

          Resolution  Trust  Corp., 955  F.2d 583,  585-86 (8th  Cir. 1992)
          _______________________

          (citing  cases).6  It  bars affirmative claims,  whether sounding

          in  contract or  tort, when  they  are premised  on an  unwritten

          agreement.  Timberland Design,  Inc. v.  First  Service Bank  for
                      _______________________      ________________________

          Sav., 932 F.2d 46, 50 (1st Cir. 1991) (citing cases).  To satisfy
          ___

          the strictures of  D'Oench and   1823(e) appellants  must show an
                             _______

          agreement in writing  to provide the additional loans.   The mere

          fact that  the appellants  relied in good  faith on  an unwritten

          agreement is not enough.  Federal Deposit Ins. Corp. v. Caporale,
                                    _________________________     ________

          931 F.2d 1, 2 (1st Cir. 1991).  

                 In  the  instant  case, the  Sweeneys  have  identified no

          written  provision of any  loan document which  explicitly states

          that such  additional financing  would be  forthcoming.   Rather,

          they  claim  that  they "reasonably  understood"  ComFed  to have

          committed itself to  such financing based on the  language of the

          agreements.  Yet, the only  provisions which they cite in support

____________________

            6.  Furey is not a defendant in the chapter 93A claim.

                                         -10-

of  this  position  are  far  too  ambiguous,  absent  extraneous

          support,   to   establish   an   agreement    to   fund   further

          construction.7   At  most, they reflect  an intention  to provide

          further funds.   However, they  are insufficient to  establish an

          obligation  on   the  part  of   ComFed  which  would   meet  the

          requirements  of D'Oench.  See, e.g.,  Federal Sav.  &  Loan Ins.
                           _______   ___  ___    __________________________

          Corp. v.  Two Rivers Assoc., Inc., 880 F.2d 1267, 1276 (11th Cir.
          ____      ______________________

          1989) (requirements of  D'Oench not met where  written provisions
                                  _______

          reflect only intent to  loan additional funds but  not obligation

          to do so);  Beighley v. Federal Deposit Ins. Corp., 868 F.2d 776,
                      ________    _________________________

          783 (5th Cir. 1989) (even  though one might derive inference from

          documents that bank would cooperate in attempt to sell  property,

          requirements of    1823(e) not  met since "not a  single document

          states in writing" that bank agreed to finance buyer).  

                 The Sweeneys also seek to  base their chapter 93A claim on

          ComFed's alleged violation of 12 C.F.R.   545.32.  This provision

____________________

            7.   The Sweeneys rely (1) on a clause  of the loan agreement
            which  requires them  to pay a  "1% nonuse  fee in  the event
            COMFED does not  finance the development and  construction of
            the 7  plus/minus additional  lots;" (2) on  a clause  in the
            construction loan  agreement which  states  that the  "Lender
            shall no[] longer  be bound by this  Agreement . . .  if said
            building or buildings and improvements shall not be completed
            on or  before twelve  (12) months from  the date  hereof, but
            Lender may advance payments but  shall not be bound to  do so
            after  the date for said completion;" and  (3) on a clause in
            the  construction loan agreement which gave ComFed "the right
            to  withhold 10% of the final  advance until forty-three (43)
            days .  . . after  the full completion of  the construction."
            Neither the references  to possible future financing  nor the
            references   to  the   project's   completion  establish   an
            obligation on the part of ComFed to fund the entire project.

                                         -11-

requires,  in relevant part,  that a federal  savings association

          may  not  make a  real estate  loan  if the  loan  "exceed[s] the

          applicable maximum loan-to-value ratio limitations prescribed [by

          the   association's  board   of  directors]."      12  C.F.R.    

          545.32(d)(4).   According to appellants, the $1,600,000 loan they

          received was more than the 75% loan to value ratio established by

          the Board of Directors of ComFed.8

                 Even  if the loan  granted the Sweeneys  violated ComFed's

          own limitation, and hence 12 C.F.R.    545.32, we are aware of no

          authority which would  indicate that this violation would  be, as

          appellants assert,  a "per se  violation" of chapter 93A.   While
                                 ___ __

          violations  of certain  federal consumer protection  statutes may

          come within  the purview of chapter 93A    2,9 12 C.F.R.   545.32

          is not a  consumer protection statute but a  "means of protecting

          insured  depositors,  the  [FDIC] fund,  and  ultimately  federal

          taxpayers."   Saratoga Sav.  & Loan Ass'n.  v. Federal  Home Loan
                        ___________________________      __________________

          Bank Bd.,  879 F.2d 689, 693 (9th Cir. 1989).  We are aware of no
          _______

          authority supporting the  claim that  an alleged  violation of   

          545.32 suffices  to state  a cause of  action under  chapter 93A.

____________________

            8.   The property was appraised at $1,960,000.

            9.   According to Mass. Regs. Code tit. 940,   3.16.4:

                 an act or practice is a violation of M.G.L. c. 93A,
                    2 if  .  .  . [i]t  violates  the Federal  Trade
                 Commission Act, the Federal Consumer Protection Act
                 or  other  federal   consumer  protection  statutes
                 within the purview of M.G.L. c. 93A,   2.

                                         -12-

The  district court  did  not  err in  granting  the RTC  summary

          judgment on the chapter 93A claim.10

                 The  Sweeneys  also  assert  that,  if  the  case  is  not

          remanded,  they are entitled to  a new trial  in federal court on

          the claims decided by the jury in the state action and entered by

          the federal district  court after removal.   The district  court,

          relying on  Fed. R.  Civ. P.  63,   entered judgment  on all  the

          claims  which had  been  tried to  the jury  in  the state  court

          action.11   The Sweeneys do  not contend that the  district court

          was without  authority to  so enter the  judgment.   Instead they

          assert  that  they  suffered  prejudice from  the  entry  of  the

          verdict.  See  Fed. R. Civ.  P. 63.   They argue  that they  were
                    ___

          prejudiced first because the jury verdict was clearly against the

          weight of the evidence.  The Sweeneys also contend that the entry

          of the verdict  prejudiced them because  the parties had  agreed,

          prior to the superior court trial, that the jury claims and those

____________________

            10.   Since the Sweeneys  make only passing reference to  the
            grant  of  summary  judgment  on  their  claim  for  specific
            performance,  any objection to this judgment has been waived.
            See Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990)
            ___ ____    _____________
            (issue  referred to  in  perfunctory  manner  on  appeal  and
            without developed argumentation deemed waived).

            11.  Rule 63 provides, in relevant part, that:

                      If a trial  or hearing has been  commenced and
                 the judge is unable to proceed, any other judge may
                 proceed with  it upon  certifying familiarity  with
                 the  record and determining that the proceedings in
                 the  case may be completed without prejudice to the
                 parties.

-13-

presented to the  court would be tried  on the same set  of facts

          simultaneously.  Therefore, the district court should either have

          entered both  the jury  verdict and the  state court  judgment or

          granted a new trial on all counts. 

                 We find  no prejudice from  the court's entry of  the jury

          verdicts.  As to the first argument, the Sweeneys are entitled to

          have the jury verdict set aside only if they demonstrate that the

          verdict  was a  "manifest miscarriage  of justice."12   Milone v.
                                                                  ______

          Moceri  Family, Inc.,  847 F.3d  35, 37  (1st Cir.  1988) (citing
          ___________________

          cases).  The Sweeneys have failed to meet this exacting standard.

          As to the second, the jury reached  its verdict after hearing the

          facts  presented at  trial; summary judgment  was granted  by the

          district court to the RTC as a matter of law and on  the basis of

          federal  defenses which  arose only  after  the trial.   In  such

          circumstances, appellants suffered no  prejudice from the failure

          to try both sets of claims simultaneously to the judge and jury.

                 The  remaining substantive claims  raised by  the Sweeneys

          merit  only brief  responses.   Since the  opinion issued  by the

          superior court on January 31, 1991,  was void ab initio, there is
                                                        __ ______

          no basis  for entering it  nunc pro tunc.   For the  same reason,
                                     ____ ___ ____

____________________

            12.  The Sweeneys moved for a new trial in the state court on
            the ground  that the jury  verdict was against the  weight of
            the evidence.  This motion  was not acted upon before removal
            and,  therefore,  was  arguably pending  before  the district
            court.   The district court,  however, made no ruling  on the
            motion.  

                                         -14-

that  opinion cannot affect the propriety of the district court's

          entrance of the jury verdict.  

                 The RTC did not engage in impermissible forum shopping  in

          removing  this  action  to  the  federal  court.    12  U.S.C.   

          1441a(l)(3)(A) allows the RTC to remove an action brought against

          it  in its  capacity  as receiver  even while  a state  appeal is

          pending.  Resolution Trust Corp.  v. Nernberg, 3 F.3d 62,  68 (3d
                    _____________________      ________

          Cir. 1993);  Lester v.  Resolution Trust  Corp.,  994 F.2d  1247,
                       ______     ______________________

          1251-52 (7th Cir. 1993); In re 5300 Memorial Investors, Ltd., 973
                                   __________________________________

          F.2d 1160, 1162  (5th Cir. 1992); see also,  Federal Deposit Ins.
                                            ___ ____   ____________________

          Corp.  v. Keating, No. 93-1230,  slip. op. at 4-7 (1st Cir.  Dec.
          ____      _______

          29, 1993)  (12 U.S.C.    1819(b)(2), the removal statute  for the

          Federal Deposit Insurance Corporation, identical in relevant part

          to  the RTC removal provision, allows  removal while state appeal

          is pending).

                 The Sweeneys have failed to  make a showing that they have

          discovered  new evidence  relating  to the  issues  tried to  the

          superior court  jury which would be "of such nature that it would

          probably change the result if a new trial is granted."  Nickerson
                                                                  _________

          v. G.D.  Searle and Co., 900 F.2d 412,  417 (1st Cir. 1990).  The
             ___________________

          only  evidence they  have  adduced  does  not appear  related  to

          actions which form the basis of their complaint.

                 The Sweeney's request for an injunction preventing the RTC

          from foreclosing on the real property securing their $1.6 million

          dollar  note is barred  by 12 U.S.C.    1821(j).   See Telematics
                                                             ___ __________

-15-

Int'l, Inc. v.  NEMLC Leasing Corp., 967 F.2d  703, 707 (1st Cir.
          __________      __________________

          1992).

                 None of the other contentions raised by the Sweeneys as to

          the disposition of their claims possesses any merit.

                 Finally, the  Sweeneys appeal  the grant  by the  district

          court, pursuant to Fed.  R. Civ. P. 11, of the  RTC's request for

          attorneys'  fees  incurred  in responding  to  appellants'  third

          motion to  remand the case to  the superior court.   The district

          court previously denied two almost identical motions and had made

          detailed findings of fact as to both the date of the  removal and

          the  RTC's  right  to  remove.    The court  did  not  abuse  its

          discretion in imposing sanctions for this repetitive motion.  See
                                                                        ___

          Mariani v. Doctors Assoc.,  Inc., 983 F.2d 5, 7-8 (1st Cir. 1993)
          _______    ____________________

          (affirming imposition  of Rule 11  sanction for filing  of second

          motion which "consisted of virtually verbatim argumentation" from
                                               ________

          a prior motion on which appellants had not prevailed).13  

                 The judgment of the district court is affirmed.  The grant
                                                       ________

          of  attorneys' fees to the RTC pursuant to  Fed. R. Civ. P. 11 is

          affirmed.
          ________

____________________

            13.  Local  Rule 54.3  is inapplicable  since  this is  not a
            "case[] where  the  law  makes provision  for  the  award  of
            attorneys'  fees" but  one  in  which  attorneys'  fees  were
            imposed as a sanction under Fed. R. Civ. P. 11.

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