VILLANTI, Judge.
Branch Banking & Trust Co. (BB & T) seeks review of the final judgment entered in favor of Kraz, LLC, Bing Charles Kearney, Jr., and Tracy L. Harris, Jr., (collectively Kraz) in this commercial foreclosure case. Of the twelve issues raised by BB & T, only one has merit, and we reverse the final judgment solely to the extent that it awarded a credit against Kraz's loan principal for amounts BB & T may have received during the pendency of the foreclosure proceedings pursuant to a Commercial Shared Loss Agreement with the Federal Deposit Insurance Corporation (FDIC). In all other respects, we affirm.
This case comes to us with a lengthy record. However, for purposes of this opinion, the relevant facts are fairly straightforward. BB & T purchased Kraz's $5,182,128 commercial construction loan, along with numerous other assets, from the FDIC after Colonial Bank, which originated the loan, was closed by the FDIC. The purchase agreement between BB & T and the FDIC included a provision called a Commercial Shared Loss Agreement, which set forth the means by which BB & T and the FDIC would share in any losses that arose from the Colonial loans
Shortly after BB & T purchased Colonial's assets, it declared the Kraz loan to be in default and it filed a foreclosure action against Kraz. During the foreclosure proceedings, a court-appointed receiver collected tenant rents, paid certain expenses, and managed the property in consultation with BB & T. The receiver transmitted the net collected rents to BB & T after the receiver himself was paid, and presumably BB & T applied these funds to reduce Kraz's indebtedness.
At the trial on the foreclosure complaint, BB & T's corporate representative, Oscar
At the conclusion of the foreclosure trial, the trial court found that Kraz had not been in default under the terms of the loan when BB & T declared the default. Having reached this conclusion, the trial court denied BB & T's request to foreclose on the property, and it set about creating an equitable remedy that would return the parties to the financial positions they would have been in had the improper default not been declared. As part of that remedy, the trial court reinstated the loan, ordered BB & T to write off the default interest and late fees it had charged, and ordered an accounting of the funds turned over to BB & T by the receiver during the course of the foreclosure proceedings. In addition, the court ordered BB & T to credit the principal of the Kraz loan with the shared loss payment that BB & T had allegedly received on this loan pursuant to the Commercial Shared Loss Agreement. Specifically, the trial court ordered
The stated purpose of this credit was to prevent BB & T from "double-dipping" by receiving payments on the loan both from the FDIC and Kraz.
In this appeal, BB & T argues, among other things,
While we base our reversal on the lack of evidence to support this credit, we also note that even if Kraz had presented additional evidence concerning BB & T's receipt of funds from the FDIC, the terms of the Commercial Shared Loss Agreement would not support the trial court's decision to award a credit based on that payment because the Commercial Shared Loss Agreement specifically requires BB & T to reimburse the FDIC if it makes any recovery on the note from Kraz. As discussed above, the Commercial Shared Loss Agreement requires BB & T to reimburse the FDIC for recoveries it makes on loans that were charged off in prior quarters. Thus, if Kraz makes payments on the reinstated loan, those payments would constitute "recoveries" under the Commercial Shared Loss Agreement, and BB & T would be required to repay the FDIC based on those recoveries. Hence, even assuming that BB & T in fact received $1.8 million from the FDIC for charge-offs on the Kraz loan, BB & T will not receive a windfall when Kraz makes payments on the loan because BB & T will be required to reimburse the FDIC to the extent of those payments. The trial court's rationale for ordering this credit — to prevent BB & T from "double-dipping" — is erroneous because the Commercial Shared Loss Agreement prevents such double-dipping by its own terms.
Moreover, we agree with BB & T that if a borrower could have the principal of his or her loan reduced due to a shared loss payment received from the FDIC during the course of foreclosure proceedings, then FDIC-regulated sales of closed banks' assets would come to a halt. If the possibility existed that a trial court, using its legal or equitable powers, could grant the relief given Kraz in this case, no bank purchasing a closed bank's loans would take seriously its responsibility to attempt to collect on those loans. Ironically, the relief afforded to Kraz by the trial court actually results in double-dipping in reverse — with the purchasing bank being compelled to both forgive the debtor for that portion of the debt paid by the FDIC and also repay the FDIC for the forgiven amount. Such a result turns the concept of equity on its head.
In sum, we hold that to the extent that the final judgment ordered BB & T to reduce the principal balance due from Kraz by any shared loss payment BB & T allegedly received from the FDIC, that judgment constituted an abuse of discretion. Accordingly, we reverse on this basis and remand for correction of this portion of the final judgment. In all other respects, we affirm.
Affirmed in part, reversed in part, and remanded for further proceedings.
CASANUEVA and KELLY, JJ., Concur.