29, 1992 Agreement, at P5 (if the downpayment becomes nonrefundable "the escrow agent shall release same to the Consolidated Asset Recovery Corporation or servicing agent for the FDIC as receiver for Citytrust").
The complaint makes reference to the Consent Orders in CV 91-4671. According to the complaint, the Consent Orders appointed Maggio as temporary receiver to protect the property for the "benefit of the FDIC, as mortgagee, and Maggio, as contract vendee." Compl. P14. The complaint also alleges that Maggio sought to terminate the sales contracts and be reimbursed for his down payment, but that FDIC's agent Consolidated Asset Recovery Corporation ("Consolidated") extended the mortgage commitment date in the October 29, 1992 contract. The Court notes that the contract provides that if the purchaser did not notify the seller of a financing commitment by December 29, 1992 the agreement "shall automatically be deemed terminated." October 29, 1992 Agreement, at P5.
Thereafter, according to the complaint, Maggio and Consolidated had various negotiations regarding the sale of Blue Water Marina to Maggio during the period between February, 1993 and August, 1994, which did not culminate in a closing. It is alleged that two letters form a contract for sale of the premises to Maggio, namely (1) a letter dated August 25, 1994 from Maggio's counsel to Consolidated offering to purchase the property for $ 1,550,000, less the $ 200,000 down payment and (2) a letter dated August 31, 1994, from Consolidated (identified in the complaint as FDIC's agent) to Maggio's counsel, advising that Leeward accepted Maggio's August 25, 1994 offer. It is alleged that during the months of October and November 1994, Leeward "ratified" the terms of the alleged contract.
The complaint further alleges that Maggio was advised in December, 1994 that Leeward would not consummate the sale to him. The complaint also alleges that Relinger and Panusuk, as assignees of the FDIC, were advised that a contract for sale of the premises to Maggio existed between Maggio and Leeward, and that Maggio was ready willing and able to execute his obligation under the contract.
In the complaint, Maggio alleges that Leeward has breached its agreement to sell the Blue Water Marina to Maggio, and that Relinger and Panasuk have "refused to take the necessary and available action to compel the transfer of the Property to Maggio." Compl. PP 39-40. The complaint also sets forth a cause of action against the FDIC for the alleged failure to carry out an alleged obligation to compel Leeward's compliance with the Consent Orders "and cause title to the Property to be transferred to Maggio."
The complaint seeks specific performance of the alleged contract of sale of the Blue Water Marina to Maggio, and in the alternative seeks money damages in the amount of $ 2,355,000.00, plus interest.
On June 30, 1995, the Court approved and so ordered a stipulation in this action between Maggio and the defendant FDIC, discontinuing the action and dismissing the complaint against the FDIC. On August 8, 1995, Maggio filed an amended complaint, pursuant to Fed. R. Civ. P. 15(a), as of right, against Leeward Ventures, Barry Relinger and Gary A. Panasuk. The amended complaint states:
This is an action seeking specific performance of a contract to acquire certain real property and for damages for breach of contract. This Court has subject matter jurisdiction over this claim under the common law doctrine established by the United States Supreme Court that the Court which first exercises control over property in an in rem proceeding has exclusive jurisdiction over all other claims relating to title to said property. This Court has supplemental and ancillary jurisdiction over the state law claims against the remaining defendants pursuant to 298 U.S.C. 1367.