claims. 12 C.F.R. § 360.2(a)(1). We agree with Heinhold that the fees and costs to which it is entitled pursuant to Paragraph 3 constitute administrative expenses of the RTC and thus must receive first priority.
We note as an initial matter that we could find no cases interpreting "administrative expenses" pursuant to section 360.2(a)(1). Heinhold's analogy to bankruptcy law, however, is instructive. Title 11, Section 503(b)(1)(A) of the United States Code provides that the actual, necessary costs and expenses of preserving the estate constitute administrative expenses, and 11 U.S.C. § 507(a)(1) requires that these expenses be given first priority status. See In re G.I.C. Gov't Sec., 121 Bankr. 647, 648 (Bankr. M.D. Fla. 1990). In In re G.I.C., the Trustee filed a complaint against E.F. Hutton. The Trustee eventually lost on appeal, and E.F. Hutton -- as the prevailing party -- filed a bill of costs and requested that it be given first priority. Reasoning that the suit instituted by the Trustee against E.F. Hutton was an attempt to benefit and preserve the property of the estate, the court concluded that
but for the suit commenced by the Trustee, E.F. Hutton would not have incurred these costs. Therefore, this Court is satisfied that these costs are properly chargeable against the estate as costs of administration. The fact that the Trustee was not ultimately successful in the suit against E.F. Hutton does not change this result.
Id. at 649. Although the bankruptcy statutes involved in In re G.I.C. are not identical to the regulatory provision covering the prioritization of unsecured claims against the RTC, we believe that this case is persuasive authority nevertheless.
As did the Trustee in In re G.I.C., RTC pursued Commonwealth's claim against Heinhold as a way of maximizing the assets of the failed thrift. RTC's own fees and costs incurred in pursuing this suit certainly are entitled to priority. We can find no basis on which to distinguish these litigation costs from those chargeable to it pursuant to Paragraph 3. As Heinhold aptly points out, its attorneys' fees and costs are nothing more nor less than a cost of litigation that RTC determined was worth pursuing. Just as RTC had to pay its own legal and expert fees and associated costs for pursuing the litigation, it also undertook to pay Heinhold's fees and costs if Heinhold prevailed. Hence, we grant Heinhold's motion and determine that its claim for attorneys' fees and costs is a first priority "administrative expense" pursuant to 12 C.F.R. § 360.2(a)(1).
For the foregoing reasons, we grant Heinhold's Motion for Attorneys' Fees and Costs in part insofar as we find that it is entitled to these fees and costs pursuant to its contract with Commonwealth. We will determine the amount of fees and costs to be awarded after the parties have had an opportunity to brief that issue. We also grant Heinhold's Motion to Determine Priority.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: September 29, 1992