Appeal from the United States District Court for the Eastern District of Wisconsin. No. 82 C 14 - Hon. Robert W. Warren, Judge.
Before CUDAHY, POSNER, and FLAUM, Circuit Judges.
The defendant, OCCI Company ("OCCI"), appeals from a final order of the district court granting summary judgment in favor of the government in its suit to foreclose on a federally insured mortgage which the Secretary of Housing and Urban Development ("HUD") held as assignee. We affirm.
On May 19, 1970, OCCI, a partnership originally consisting of several Milwaukee physicians and dentists, executed and delivered to First Wisconsin National Bank of Milwaukee a note in the amount of $3,194,600 which was secured by a mortgage on a low and moderate income housing project, known as Apollo Village Apartments ("Apollo Village"), to be built in Milwaukee's inner city. OCCI, however, failed to pay the monthly installment due on December 1, 1973 prior to the due date of the next monthly installment as required under the terms of the mortgage note and was therefore in default. Since that time, OCCI has not made sufficient payments to restore its loan to currency.
Shortly after its acquisition of the note and mortgage by assignment,*fn1 HUD commenced negotiations with OCCI, through its managing partner, Dr. Louis Maxey, to remedy the serious physical deterioration of the Apollo Village project and to bring the mortgage payments current. Their efforts culminated in a March 13, 1975 Propositional Work-Out Arrangement which HUD officials drafted and submitted to OCCI. Although OCCI never signed this proposal nor entered into any other written work-out agreement, HUD nonetheless continued to work with OCCI in hopes of resolving the fiscal problems which plagued the Apollo Village project, at various times providing subsidies in the form of interest reduction payments, loan management funds and rent supplement funds. Apparently, little improvement occurred. So finally, troubled by Apollo Village's high vacancy rate and continued poor state of repair as well as the lack of investment by OCCI of additional funds to offset needed repairs, HUD, in December 1980, informed Dr. Maxey that OCCI's failure to make a financial contribution toward needed repairs would result in a recommendation for foreclosure. HUD agreed, however, to forestall any "adverse action" until April 30, 1981, by which time Dr. Maxey was expected to have made significant improvements in the physical condition of the Apollo Village project or negotiate its sale. In May, HUD notified Dr. Maxey that it had decided to foreclose, citing as its reasons OCCI's serious default on its loan (the delinquent balance as of March 1, 1981, totalled $365,852.15 which constituted an increase of over $100,000 during the previous twelve months), failure to propose a satisfactory work-out arrangement, poor financial reporting, and failure to provide sufficient capital funding to improve Apollo Village's overall poor physical condition. Representing the HUD that he was in the process of negotiating the sale of Apollo Village, Dr. Maxey, through counsel, informed HUD on May 15, 1981, that he expected to conclude negotiations shortly and would be able to present a proposal to HUD for its approval no later than the week of June 1, 1981, and requested that any foreclosure action be forestalled until such time. HUD complied. OCCI subsequently submitted a proposal to HUD on August 21, 1981, but it was deemed deficient. In its response, HUD additionally stated that further negotiations would be conditioned upon a "substantial up-front cash contribution to be applied against the existing delinquency" and the "resolution of the outstanding audit findings" to HUD's satisfaction. HUD, however, also agreed to a 30-day "hold" on the institution of foreclosure proceedings to enable OCCI to submit an amended proposal. None came. Consequently, the government commenced the instant foreclosure action on January 11, 1982.
On March 22, 1982, nearly two and one-half months after suit was filed, OCCI submitted its formal request for HUD approval of Apollo Village's sale ("Johnson/Schuman proposal"). During the ensuing four months, HUD officials processed the request, met and corresponded with the proposed purchaser and OCCI's counsel, finally rejecting the proposed sale on July 30, 1982. On October 13, 1982, the government moved for summary judgment. The district court concluded, among other things, that HUD did not abuse its discretion in disapproving OCCI's proposed sale of Apollo Village, and since OCCI admitted default, the court entered summary judgment for the United States on February 16, 1984. United States v. OCCI Company, 580 F. Supp. 645 (E.D. Wis. 1984). OCCI now appeals.
It is undisputed that OCCI has been in default since December, 1973, on its obligation to make periodic payments on its mortgage note. Once a default is established, "'the sole situation presented is one of remedies.'" United States v. Victory Highway Village, Inc., 662 F.2d 488, 494 (8th Cir. 1981), quoting United States v. View Crest Garden Apartments, Inc., 268 F.2d 380, 383 (9th Cir.), cert. denied, 361 U.S. 884, 80 S. Ct. 156, 4 L. Ed. 2d 120 (1959). While HUD must exercise its powers consistent with national housing policy as embodied in 42 U.S.C. § 1441, it has broad discretion to choose its remedies in the event of default and thereby achieve national housing objectives. United States v. Victory Highway Village, Inc., 662 F.2d at 495; United States v. Winthrop Towers, 628 F.2d 1028, 1036 (7th Cir. 1980). Section 107(k) of the National Housing Act, 12 U.S.C. § 1713(k), authorizes the Secretary to institute foreclosure proceedings and to prosecute such proceedings to conclusion in the event of default. In addition, the remedies provided by the terms of the mortgage contract expressly empower HUD, upon default, to enforce payment of sums due by judicial foreclosure. In the instant case, HUD's decision to foreclose and institute judicial proceedings is not challenged by OCCI.*fn2 Rather, OCCI's challenge to the foreclosure proceedings centers on HUD's actions following the filing of suit in district court. OCCI complains that HUD's handling and ultimate rejection of OCCI's request for approval of the Johnson/Schuman proposal was improper, thereby precluding HUD from continuing to prosecute the foreclosure action.
Once the right to foreclose has been established, as is the case here, this court has allowed the mortgagor to come forward and introduce, as an affirmative defense which would defeat HUD's foreclosure right, evidence that HUD's decision to foreclose was "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" United States v. Winthrop Towers, 628 F.2d at 1036 (citation omitted). Accord United States v. Victory Highway Village, Inc., 662 F.2d at 494; United States v. Prince Hall Village, Inc., 597 F. Supp. 118, 120 (C.D. Ill. 1984); United States v. American National Bank & Trust Company of Chicago, 595 F. Supp. 324, 325 (N.D.Ill. 1983); United States v. Beacon Terrace Mutual Homes, Inc., 594 F. Supp. 53, 57 (D.Md. 1984); Little Earth of United Tribes, Inc., v. U.S. Department of HUD, 584 F. Supp. 1287, 1290 (D.Minn. 1983). OCCI seeks to extend the holding of Winthrop Towers and require judicial review of the actions of HUD occurring subsequent to its decision to foreclose and the institution of foreclosure proceedings. OCCI asserts that summary judgment cannot be granted because there is a genuine issue of fact concerning HUD's conduct, during the course of litigation, in rejecting the attempts of OCCI to save the Apollo Village project. Specifically, OCCI contends that the evidence it has marshalled suggests that HUD (1) acted arbitrarily and capriciously, (2) failed to consider and comply with the mandate of the National Housing Act, 42 U.S.C. § 1441, and (3) violated its own privacy regulations, 24 C.F.R. § 16.11, in its disapproval of the Johnson/Schuman proposal, thereby precluding HUD's right to continue the prosecution of its foreclosure action.
There is little doubt that HUD, in its dealings with defaulting mortgagors, is obliged to follow the mandates and policies of the National Housing Act, see, e.g., United States v. Winthrop Towers, 628 F.2d at 1035, and "'action taken with out consideration of them, or in conflict with them, will not stand.'" Id. (citation omitted). One of the objectives of the national housing policy, as pointed out by OCCI, is that "private enterprise shall be encouraged to serve as large a part of the total need as it can...." 42 U.S.C. § 1441. However, once a mortgagor defaults, "'the federal policy to protect the treasury and promote the security of federal investment which in turn promotes the prime purpose of the Act -- to facilitate the building of homes by use of federal credit -- becomes predominant.'" United States v. Victory Highway Village, Inc., 662 F.2d at 494, quoting United States v. Stadium Apts., Inc., 425 F.2d 358, 363 (9th Cir.), cert. denied, 400 U.S. 926, 91 S. Ct. 187, 27 L. Ed. 2d 926 (1970). In the present case, it is clear that HUD's decision to reject the Johnson/Schuman proposal served to promote the interests and objectives of the National Housing Act. Among the reasons set forth by HUD's Acting Area Manager in a letter to OCCI's attorney explaining HUD's rationale for its disapproval of the Johnson/Schuman proposal, and certainly the most prominent was the inadequacy of case contributions to remedy Apollo Village's physical deterioration and the outstanding mortgage delinquency. However, the letter went on to list other unacceptable terms of the proposal, including the use of a residual receipts note to finance the sale which would obligate Apollo Village to pay OCCI's equity. Additionally, the letter further explains that due to HUD's inability to secure loan management and flexible subsidy funding, a vital contingency of the proposal was not met. Coupled with OCCI's undisputed and longstanding default on its mortgage, there is little doubt but that the various reasons advanced by HUD in support of its decision to reject the proposed sale of Apollo Village are consistent with the intent and purpose of national housing policies and objectives.
In support of its claim, OCCI submits the affidavit of Dr. Maxey wherein he states that a purchase and sale agreement was developed and submitted to HUD for its approval but was rejected in an untimely fashion and without explanation as to the conditions on which the sale would be approved. Admittedly, Dr. Maxey's assertions are supportive of OCCI's argument that HUD acted arbitrarily or capriciously. However, the evidence does not support these conclusory statements. OCCI submitted the Johnson/Schuman proposal on March 23, 1982. On May 26, 1982, HUD corresponded with the prospective buyers and set out the deficiencies in the proposal, a copy of which was provided to Dr. Maxey. In response, OCCI's counsel wrote to HUD assuring it that the required information would be submitted; no inquiry was made concerning the specificity of HUD's problems with the proposal. On July 2, 1982, HUD again wrote to the prospective buyers and listed various items of the proposal which still had not been satisfactorily addressed. As before, Dr. Maxey was sent a copy of this correspondence. HUD's final decision disapproving the Johnson/Schuman proposal, and a listing of the reasons upon which it was based, was sent to OCCI's counsel on July 30, 1982, approximately four months after submission of the proposal. In the face of this sequence of events, the Maxey affidavit, replete with only conclusory statements, is clearly inadequate or capriciously in its handling of, and decision on, the Johnson/Schuman proposal and thereby defeat the governments' summary judgment motion. See United States v. Gross Realty & Construction Co., 586 F. Supp. 231, 235 (E.D.Pa. 1984); United States v. Golden Acres, Inc., 520 F. Supp. 1073, 1079 (D.Del. 1981).*fn3 Indeed, contracts requiring governmental approval and compliance with various statutory or regulatory provisions, by their very nature, may involve a lengthy review process. HUD's review and processing of the sale proposal was reasonably prompt, and its decision to deny the proposed sale was not arbitrary, capricious or contrary to national housing policy.
Moreover, even if, as OCCI argues, HUD's approach in its review and disapproval of the Johnson/Schuman proposal was "ostrich-like" in light of the history of the Apollo Village project, and arguably created a factual dispute, it is not a material one.*fn4 The exercise of HUD's business and administrative judgment in arriving at a decision to foreclose and institute proceedings is clearly circumscribed by its duty to promote the policies of the National Housing Act and subject to limited judicial review pursuant to 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act. United States v. Winthrop Towers, 628 F.2d at 1036. However, once proceedings are commenced, any further business judgments made by HUD in its continued prosecution of the foreclosure action are immaterial and collateral to HUD's decision to foreclose and, therefore, wholly discretionary.*fn5 The availability of judicial review of HUD's discretionary decisions was not meant to afford the defaulting mortgagor an opportunity to resist foreclosure by seeking review of the efforts taken by the parties during the course of litigation in attempting to sure the default and resolve related fiscal problems and thereby prolong the foreclosure proceedings. Equitable grounds, as those asserted here by OCCI, are not a defense to mortgage foreclosure by HUD once default occurs, Little Earth of United Tribes, Inc. v. U.S. Department of HUD, 584 F. Supp. at 1291, especially in view that the negotiations for the sale of Apollo Village occurred subsequent to the commencement of foreclosure proceedings.*fn6
Lastly, OCCI argues there exists a genuine issue as to whether HUD privacy regulations were violated. See 24 C.F.R. § 16.11. We need not address the merits of this assertion, however, since the Privacy Act, 5 U.S.C. § 552a, furnishes OCCI with the appropriate remedy for violations caused by action of a federal agency. See 5 U.S.C. § 552a(g)(1). Moreover, review of OCCI's Privacy Act claim is clearly collateral to the instant litigation and, therefore, to allow OCCI to litigate this claim in the context of a foreclosure proceeding would frustrate the objectives sought by HUD in its decision to foreclose -- "the prompt enforcement of the rights of the United States through HUD" to minimize losses from its insurance funds, preserve the assets of the insurance fund so that more projects may be insured in the future, and ...