TJOFLAT, Circuit Judge:
In this case, we are called upon to determine whether a sublease transferred by the Federal Deposit Insurance Corporation ("FDIC") to Iberiabank after it took over the assets of a failed bank is enforceable despite a clause purporting to terminate the sublease on sale or transfer of the failed bank. The District Court granted summary judgment in favor of Iberiabank, holding that the termination clause was unenforceable against Iberiabank under 12 U.S.C. § 1821(e)(13)(A) (2006),
In Part I, we recount the facts of the case and the proceedings in the District Court. In Part II, we explain the statutory framework that governs the FDIC's powers when it acts as receiver of a failed bank. We then interpret § 1821(e)(13)(A) as it applies to the disputed sublease.
Beneva and Iberiabank became parties to the sublease at issue through a series of assignments. The sublease, which covers premises on which Iberiabank operates a bank branch, was executed on January 3, 1979, by Casto Developers as sublessor and National Bank Gulf Gate as sublessee. The term of the sublease was twenty years, with an option to renew for ten successive periods of five years each. The rent for each renewal period was set at 110% of the rent paid during the preceding term. The sublease provided that on termination of the agreement, the sublessee would surrender the premises to the sublessor.
Sometime between 1979 and 2002, National Bank Gulf Gate was merged into or acquired by SunTrust Bank. On April 26, 2002, SunTrust assigned its interests in the sublease to Orion Bank. Orion paid SunTrust $1,051,000 for the improvements on the property. Casto Investments Company, Ltd., successor-in-interest to Casto Developers, signed a Memorandum of Lease with Orion. At that time, the original term of twenty years had run and the current term of the lease was for five years commencing June 3, 1999. An option to renew for nine additional five-year periods remained.
On January 8, 2009, Orion was notified that Casto had sold the subleased property to Beneva. On August 31, 2009, Beneva and Orion entered into an amendment to the sublease. The amendment provided that the sublease term would be extended to June 3, 2049, the expiration date of the final five-year extension in the original sublease. Orion agreed to pay Beneva $1.75 million as a "lease extension incentive."
On November 13, 2009, the Florida Office of Financial Regulation closed Orion and appointed the FDIC receiver, with authorization to take charge and
Iberiabank brought this declaratory judgment action in the District Court for the Middle District of Florida on July 26, 2010. It asked the court to rule that the termination clause was unenforceable under 12 U.S.C. § 1821(e)(13)(A) and thus the sublease was still in effect without the termination clause.
On January 25, 2011, before discovery had been completed, Iberiabank moved for summary judgment. The District Court
This appeal followed. Beneva argues, inter alia,
We review a district court's grant of summary judgment de novo. Holloman v. Mail-Well Corporation, 443 F.3d 832, 836 (11th Cir.2006). We consider the evidence in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate when there is no genuine issue of material fact and the evidence compels judgment as a matter of law in favor of the moving party. Id. at 836-37.
There appear to be no genuine issues of material fact in this case. Beneva and Iberiabank's dispute involves construction of § 1821(e)(13)(A) and application of the statute to the sublease and amendment at issue, which are matters of law appropriate for summary judgment. We first describe the statutory background on which the issues play out before turning to the merits of the case.
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), Pub.L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of 12 U.S.C.), was enacted to strengthen regulation of the nation's financial system in the wake of the savings and loan crisis of the 1980s.
When the FDIC is appointed conservator or receiver, it succeeds to "all rights, titles, powers, and privileges of the insured depository institution." § 1821(d)(2)(A)(i). It may operate the institution, § 1821(d)(2)(B), or it may "transfer any asset or liability of the institution in default... without any approval, assignment, or consent with respect to such transfer," § 1821(d)(2)(G)(i)(II). The FDIC may also "exercise all powers and authorities specifically granted to conservators or receivers, respectively, under this chapter and such incidental powers as shall be necessary to carry out such powers." § 1821(d)(2)(J)(i).
The FDIC's powers with respect to contracts entered into before its appointment as conservator or receiver are provided in § 1821(e). The receiver has the authority to repudiate or disaffirm any contract or lease to which the depository institution is a party if the receiver determines that it would be burdensome and that repudiation would "promote the orderly administration of the institution's affairs." § 1821(e)(1).
It is § 1821(e)(13)(A) that is at issue in this case. Beneva argues that Iberiabank has no power to enforce the sublease under § 1821(e)(13)(A) because the statute grants that power only to a conservator or receiver.
Although the District Court determined that Iberiabank, as the FDIC's successor-in-interest, could enforce the contract, we do not agree that Iberiabank is attempting to enforce the contract. If the contract remains in effect, it is because the FDIC enforced it when it transferred Orion's assets to Iberiabank. We thus look to the record to determine whether the FDIC enforced the contract.
When the Florida Office of Financial Regulation appointed the FDIC receiver of Orion, it authorized the FDIC to "take charge and possession of all assets and affairs of Orion Bank." Section 658.82(1) of the Florida statutes provides that when the FDIC is appointed receiver, "it may proceed independently with the receivership pursuant to its rules and regulations."
The same day the FDIC took possession of Orion, it transferred Orion's assets, liabilities, and obligations to Iberiabank pursuant to its power under § 1821(d)(2)(G)(i)(II) to "transfer any asset or liability of the institution in default." The sublease was not listed as an asset in the agreement that governed the transfer.
In assuming the sublease and subsequently transferring it to Iberiabank, the FDIC was acting within its power to take charge of Orion's assets, to transfer those assets, and to enforce contracts entered into by Orion. The termination clause in the sublease purporting to allow termination on transfer of Orion's assets would have been triggered by the FDIC's takeover of Orion's assets. The FDIC, however, had the power to enforce the lease notwithstanding clauses to the contrary. It must have enforced the sublease when it transferred Orion's assets to Iberiabank; otherwise, the option to lease the occupied premises would have been meaningless. Without the leased premises, the value of Orion's assets would have decreased. The FDIC was thus carrying out its duty under FIRREA to maximize the value of failed banks when it entered into the Purchase and Assumption Agreement and enforced the sublease.
Notwithstanding the FDIC's power to transfer assets and enforce contracts, Beneva contends that the termination clause is enforceable against the FDIC because it does not expressly condition termination on insolvency or appointment of a conservator or receiver. Iberiabank argues that the termination clause is unenforceable under § 1821(e)(13)(A) because, regardless of whether it contains exact language from the statute, it was triggered by the FDIC's receivership of Orion.
Under § 1821(e)(13)(A), the FDIC may enforce contracts entered into by the depository institution "notwithstanding any provision of the contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the appointment of or the exercise of rights or powers by a conservator or receiver." The termination clause at issue provides for termination if "Orion is sold and/or transferred to another banking institution." The clause does not mention insolvency or appointment of a receiver or conservator, and it applies in contexts outside insolvency. There is nothing in § 1821(e)(13)(A), however, that premises unenforceability on explicit reference to insolvency or conservatorship or receivership. Although the termination clause does not incorporate the statutory language "exercise of the rights of the receiver," the termination clause's trigger is the exercise of one of the rights of the receiver — the right to succeed to all rights and title of Orion pursuant to § 1821(d)(2)(A)(1) or to transfer or sell Orion's assets pursuant to § 1821(d)(2)(G)(i)(II).
Even presuming ambiguity as to whether § 1821(e)(13)(A) applies only to ipso facto clauses that include specific statutory
Beneva also argues that the termination clause does not fall within the language of the statute because there are situations outside the insolvency context in which the clause would be enforceable. If Orion's shareholders had simply sold the bank, Beneva would have been able to terminate the sublease under the terms of the amendment. The fact that the termination clause is enforceable in some contexts, however, does not mean that it is enforceable in all contexts. As applied when a bank is in receivership, the Clause operates to terminate upon "exercise of rights or powers by a conservator or receiver," and thus is unenforceable under § 1821(e)(13)(A). The broad scope of the clause does not save it.
Beneva's narrow reading of § 1821(e)(13)(A) is unsupported by the language of the statute and would allow contracting parties to defeat the FDIC's power to enforce contracts simply by drafting termination clauses that do not explicitly mention insolvency or receivership. Given FIRREA's grant of broad powers to the FDIC to manage the affairs and preserve the value of insolvent banks, Congress could not have intended the statute to be construed to allow such a result. We hold that the Termination Clause falls within the language of § 1821(e)(13)(A) and is therefore unenforceable against the FDIC as receiver of Orion. The FDIC was acting within its powers when it enforced the sublease notwithstanding the termination clause. The District Court properly granted summary judgment to Iberiabank, and the sublease between Beneva and Iberiabank remains in effect.
We note that our decision does no injustice to Beneva. The original sublease was drafted in 1979, before FIRREA was enacted but well after the FDIC was created
AFFIRMED.
Under § 658.79, the Office of Financial Regulation may designate a receiver to take charge of the assets and affairs of a bank "[w]henever the office has reason to conclude, based upon the reports furnished to it by a state bank or trust company examiner or upon other satisfactory evidence, that any state bank or trust company: (1) Is insolvent or imminently insolvent."
Under § 658.80(2), "[t]he Federal Deposit Insurance Corporation or any appropriate federal agency shall be appointed by the office as receiver or liquidator of any state bank, the deposits of which are to any extent insured by the corporation."
Section 658.81 provides for notice and court confirmation of appointment of the receiver after a hearing. Florida Circuit Judge Hugh Hayes found that the Office had shown that Orion was imminently insolvent as defined in § 655.005(1)(k) and entered an order confirming appointment of the FDIC on November 13, 2009.
The District Court, in granting summary judgment, reserved jurisdiction on the matter of attorney's fees and directed the parties to engage in good faith negotiations to resolve the amount of fees and costs. In its order granting attorney's fees, the court noted that the parties had stipulated to fees of $19,438.50, but that Beneva contended that the court lacked jurisdiction to award the fees because it was divested of jurisdiction when Beneva filed its notice of appeal.
Although the language of Section 16.04 does not provide for fees in the event that the sublessee brings a declaratory judgment action, Beneva has waived any claim about the language of the contract clause by stipulating to the amount of fees owed. See Charter Co. v. United States, 971 F.2d 1576, 1582 (11th Cir. 1992) ("Having induced the court to rely on a particular erroneous proposition of law or fact, a party in the normal case may not at a later state of the case use the error to set aside the immediate consequence of the error.").
We also note that Beneva's jurisdiction argument fails. Filing an appeal does not divest a district court of jurisdiction to decide the issue of attorney's fees. Rather, Beneva's appeal was premature when filed because the court had not yet entered judgment on attorney's fees. In this circuit, "a request for attorney's fees pursuant to a contractual clause is considered a substantive issue; and an order that leaves a substantive fees issue pending cannot be `final.'" Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355 (11th Cir.2002). A premature appeal may be cured, however, by a subsequent order terminating the litigation. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1295-96 (11th Cir. 1988) (citing Bank South Leasing, Inc. v. Williams, 778 F.2d 704, 705 (11th Cir.1985)) ("[A] notice of appeal filed after judgment was rendered but before the attorney's fee issue was decided was premature, but ... a subsequent order deciding the attorney's fees issue cured the premature notice."). Because the district court entered an order on attorney's fees one week after the notice of appeal was filed, Beneva's notice of appeal is timely.
An anti-assignment provision in the sublease does not affect the FDIC's rights. When the FDIC was appointed receiver, it succeeded by operation of law to all the assets and rights of Orion, including the sublease, notwithstanding any anti-assignment provision.
The District Court in this case relied on McAndrews v. New Bank of New England, N.A., 796 F.Supp. 613 (D.Mass.1992), aff'd sub nom. McAndrews v. Fleet Bank of Massachusetts, N.A., 989 F.2d 13 (1st Cir. 1993), in holding that the Termination Clause is unenforceable against the FDIC or its successor-in-interest. But in that case, the FDIC was a party to the action, and the court did not engage in interpretation of § 1821(e)(12)(A). Instead, the First Circuit held that applying the statute to a contract entered into before FIRREA was enacted did not constitute an impermissible retroactive application, nor did it constitute an unconstitutional taking.
In Resolution Trust Corp. v. District of Columbia, 78 F.3d 606 (D.C.Cir.1996), the RTC challenged the District of Columbia's invocation of a "bankruptcy clause" providing for termination of a lease of office space if the lessor "failed in business." The District Court for the District of Columbia had determined that if the bankruptcy clause applied, it would be overridden by § 1821(e)(12)(A). The Court of Appeals for the D.C. Circuit did not reach the issue, however, because it determined that an estoppel certificate signed by the District of Columbia prevented it from invoking the bankruptcy clause when the lessor went into receivership.
The Sixth Circuit has decided two cases in which § 1821(e)(13)(A)'s predecessor is mentioned. FDIC v. Aetna Cas. and Sur. Co., 903 F.2d 1073 (6th Cir. 1990), involved a provision in bankers blanket bonds that provided for termination of coverage on takeover by the FDIC. The court noted that § 1821(e)(12)(A) specifically excludes fidelity insurance from its prohibitions, so the provision in the bonds could not be against public policy. RTC v. Cheshire Mgmt. Co., 18 F.3d 330 (6th Cir. 1994), involved a qualified financial contract, which is governed by a separate provision, § 1821(e)(8)(A).