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MAGGIO v. LEEWARD VENTURES

September 18, 1996

LEONARD MAGGIO, Plaintiff, against LEEWARD VENTURES, LTD., BARRY RELINGER and GARY A. PANUSUK, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff Leonard Maggio (the "plaintiff" or "Maggio") cross moved for an order consolidating this action with an action entitled Federal Deposit Insurance Corp. as receiver of Citytrust v. Leeward Ventures, David Osiecki, State of New York, Town of Hempstead, "John Doe # 1" through "John Doe # 10", the last ten names being fictitious persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint and herein sought to be foreclosed, CV 91-4671 (ADS) [hereinafter "the foreclosure action"].

 I. BACKGROUND

 A. The foreclosure action

 The story of the present law suit begins with another. On November 27, 1991, the Federal Deposit Insurance Corporation as receiver of Citytrust ("FDIC"), commenced an action seeking (1) foreclosure of mortgaged premises located at Bayberry Avenue and Whaleneck Drive in the Town of Hempstead, County of Nassau (the "Blue Water Marina") and (2) deficiency judgments against Leeward Ventures and David Osiecki ("Osiecki"). In the foreclosure action, this Court's jurisdiction was based upon 12 U.S.C. § 1819(b)(2)(a), which provides that civil actions in which the FDIC is a party are deemed to arise under the laws of the United States, as well as diversity of citizenship in that Citytrust was a Connecticut banking institution and the defendants were both residents of New York.

 In connection with a loan to purchase the Blue Water Marina, Leeward executed a promissory note date December 21, 1986 in the principal sum of $ 3,000,000.00 (three million dollars) plus interest, secured by a mortgage, in favor of Citytrust. The promissory note was also secured by the personal guaranty of the defendant Osiecki, dated December 21, 1986. The promissory note matured on December 21, 1990, at which time Citytrust demanded payment and, according to the complaint in the foreclosure action, Leeward and Osiecki defaulted.

 On August 9, 1991, the FDIC, acting pursuant to 12 U.S.C. § 1821, took possession of the assets of Citytrust and succeeded to its rights under the promissory note, mortgage and personal guaranty executed by Leeward and Osiecki. On November 27, 1991, the FDIC commenced CV 91-4671 to foreclose the mortgaged premises and obtain a deficiency judgment against Osiecki ("the foreclosure action"). In February of 1995, the FDIC assigned the mortgage, promissory note and cause of action asserted here to Barry Relinger and Gary A. Panasuk, who were substituted as party plaintiffs in the foreclosure action.

 The parties entered into a settlement stipulation and Consent Order dated December 4, 1992, which was modified by a subsequent Consent Order dated January 9, 1993 ("the Consent Orders"), appointing Leonard Maggio ("Maggio") as receiver of the mortgaged premises. Upon entry of the first of the Consent Orders, the foreclosure action was closed. The Court retained jurisdiction over the case for the purpose of enforcing the terms of the settlement agreement. The Consent Orders provided, among other things, that (1) the total amount due under the promissory note was $ 4,038,834.38; (2) David Osiecki would be released from his obligations under the guaranty for a sum of $ 60,000.00, to be paid on or before January 31, 1993; (3) an $ 80,000.00 Leeward bank account balance would be applied to reduce the defendants' obligations; and (4) the proceeds received from a contract to sell the mortgaged premises would be assigned to the FDIC. The Consent Orders provided that Maggio would serve as temporary receiver until the conclusion of the foreclosure action or until title to the mortgaged premises was transferred pursuant to the contract for sale of the premises that is referred to in the December 4, 1992 Order. Annexed as Exhibit "A" to the December 4, 1992 Order is a copy of that contract. The purchaser under the contract is Leonard Maggio.

 Since the foreclosure action was closed in 1992, the Court's intervention has been sought in connection with several matters. First, in a letter dated January 11, 1995, counsel for the FDIC alleged that David Osiecki failed to comply with the terms of the Consent Orders. Counsel advised the Court on March 2, 1995, that the FDIC agreed not to compel Osiecki and Leeward to transfer the property, which transfer was resisted by the defendants because of alleged adverse tax consequences resulting from bankruptcy proceedings. See Transcript of March 2, 1995 conference, at 6-7. At that time, counsel for Osiecki and Leeward noted that the FDIC or its successor in interest also has the option to foreclose upon the property. See id.

 The second intervention by the Court since the foreclosure action was closed was precipitated by a letter dated February 15, 1995 from counsel for Leonard Maggio. That letter alleged that the defendants Leeward and Osiecki had violated the terms of the Consent Orders by refusing to cooperate in the transfer of the premises to Maggio. Maggio claimed that he was a third party beneficiary of the Consent Orders, based on a provision that gives the FDIC, among other remedies upon default of the agreement, the option to compel transfer of the premises. The Court held another conference on March 2, 1995, at the conclusion of which the parties were directed to attempt to resolve the matters among themselves and advise the Court of their progress. The docket sheet in this action does not reflect that any such progress report, or other communication regarding the alleged violations of the Consent Order, was submitted to the Court. Apparently an agreed upon resolution to the matter was not reached because on April 13, 1995, Maggio commenced the present action in the Federal Court to compel specific performance of alleged agreements to sell and convey the Blue Water Marina to him, naming the FDIC, Leeward Ventures, Barry Relinger and Gary A. Panasuk as defendants. At the time of the commencement of the present action, the FDIC had already assigned the mortgage, promissory note and cause of action to Relinger and Panasuk.

 The Court's third involvement with the foreclosure action subsequent to its closing concerned the final settlement of the receivership. As stated above, in February of 1995, the FDIC assigned the mortgage, note and cause of action relating to the Blue Water Marina to Relinger and Panasuk, who were then substituted as party plaintiffs in the foreclosure action. In an Order dated March 22, 1995, the Court terminated the Maggio receivership to permit Relinger and Panasuk to enter into possession of the subject property. Thereafter, Maggio moved the Court for order settling the receiver's account, fixing and approving the commissions of the receiver, discharging the receiver and the undertaking of the surety, cancelling the undertaking, directing the receiver to disburse any funds in the receiver account and awarding attorneys fees associated with the costs of the motion. The FDIC, Osiecki, Relinger and Panasuk opposed the motion and alleged improper conduct by Maggio in managing the affairs of the Blue Water Marina. Due to the many issues of fact raised by the parties opposing the final settling of the receiver's account, the Court denied Maggio's motion, without prejudice, and referred the matter to United States Magistrate Judge Michael L. Orenstein to conduct a hearing and prepare a report and recommendation to the Court concerning the receiver's requested commissions, attorneys fees and settlement of the receiver's account. See March 17, 1996 Order. The Court granted Maggio's motion to retain legal counsel with regard to the further proceedings. See id. The Court noted the following in its March 17, 1996 Order: "Maggio was appointed as receiver on the stipulated consent application of the parties and not on the initiative of the Court." Id., at 2. Those proceedings before the Magistrate Judge are still pending.

 Several of the provisions of the Consent Orders in the foreclosure action are referred to in the present case, which, again, is Maggio's contract action to compel specific performance, CV 95-1477. Paragraph Six, Seven and Nine of the Order dated December 4, 1992 provide:

 
6. The Principal Defendants warrant and represent that defendant LEEWARD VENUTRES, LTD. has contracted to sell the premises against which the Mortgage sued upon by the FDIC as Receiver of Citytrust in this action is recorded (the "Premises"), pursuant to the terms of a certain contract of sale, which has been shown to Consolidated Asset Recovery Corporation, as agent for the FDIC as Receiver of Citytrust, and a true and complete copy of which is annexed hereto as Exhibit "A" (the "Contract of Sale").
 
7. The Principal Defendants hereby assign their rights to payment of all proceeds from the Contract of Sale, including any deposits, down payments and credit adjustments for taxes and other expenses, but not less than $ 2,000,000.00, to the FDIC as Receiver of Citytrust. The Principal Defendants shall notify the Purchaser described in the Contract of Sale (the "Purchaser") in writing that all proceeds thereof have been assigned to the FDIC as Receiver of Citytrust, and direct the Purchaser to make all payments directly to the FDIC as Receiver of Citytrust. In the event that the Principal Defendants fail to notify the Purchaser of this assignment, the FDIC as Receiver of Citytrust may notify the Purchaser of this assignment in writing, and such notice will have the same force and effect as if given by the Principal Defendants. The FDIC as Receiver of Citytrust shall in its sole discretion apply all proceeds received from the Contract of Sale to reduce the indebtedness owed under the Lien Instruments. After receipt by the FDIC as Receiver of Citytrust of the payment of all proceeds of the Contract of Sale, together with the payments referred to in paragraphs 4 and 5 of this Stipulation, the FDIC as Receiver of Citytrust shall provide the Principal Defendants and the Purchaser with an appropriate release of the Mortgage held by the FDIC as Receiver of Citytrust upon the Premises.
 
9. In the event that the closing upon the Contract of Sale does not occur by December 30, 1992, the FDIC as Receiver of Citytrust, if it so elects and in its sole discretion, without further notice to the Principal Defendants, with the exception of pursuing a deficiency judgment against Osiecki, unless DAVID OSIECKI has committed fraud to induce the FDIC as Receiver of Citytrust to enter into this stipulation, may: (a) proceed ex parte with all further proceedings herein, including obtaining an order of reference, conducting a referee's hearing, entering final judgment of foreclosure and sale for the amount due hereunder pursuant to the Lien Instruments, and auctioning the premises at a judicial sale; or (b) compel the Principal Defendants to convey the Premises by deed-in-lieu of foreclosure to the FDIC as Receiver of Citytrust, its nominee or a designated third party; or (c) compel the Principal Defendants to sell the Premises at a commercial auction. None of these alternative transactions shall be considered exclusive of the others, and the FDIC as Receiver of Citytrust may at any time, whether it has or has not elected to pursue one of the alternative transactions, demand that the Principal Defendants perform under one of the other alternatives.

 December 4, 1992 Consent Order, at 4-7.

 B. The contract action

 On April 13, 1995, Leonard Maggio commenced this action to compel specific performance of an alleged agreement to sell him the Blue Water Marina. The defendants named in the original complaint were the FDIC as receiver of Citytrust, Leeward Ventures, Ltd. Barry Relinger and Gary A. Panusuk. The Court's jurisdiction was based on 12 U.S.C. § 1819 (b)(2)(A) by virtue of the FDIC being a party defendant.

 The complaint alleges that Maggio entered into contracts of sale with Leeward on October 29, 1992 and gave $ 200,000.00 to Leeward, to be held in escrow by the FDIC's Counsel, O'Connor, Reddy & Jensen, as a down payment under the contract. The Court notes that the October 29, 1992 agreement between Leeward and Maggio provides that the downpayment shall become nonrefundable if the purchaser requests an adjournment of the closing date. See October 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 ...

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